Justin Rashad Howard v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-3824
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JUSTIN RASHAD HOWARD,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Duval County.
Steven B. Whittington, Judge.
July 23, 2019
PER CURIAM.
Justin Rashad Howard appeals the trial court’s order striking
his pro se motion to withdraw plea. For the reasons that follow,
we affirm.
Upon entering an open plea of guilty, Appellant was convicted
of numerous offenses and sentenced as a habitual violent felony
offender (“HVFO”). We reversed the denial of his motions to
correct illegal sentence upon concluding that he did not qualify as
an HVFO. See Howard v. State, 245 So. 3d 962 (Fla. 1st DCA
2018). On remand, Appellant was appointed counsel for the re-
sentencing hearing, following which he filed a pro se motion to
withdraw his plea. In his motion, Appellant alleged that his plea
of guilty “was involuntary and unintelligent d[ue] to the fact that
he was under the impression he was HVFO when in fact he was
not” and the court prejudiced him by erroneously sentencing him
as an HVFO. The trial court struck Appellant’s motion as a nullity
because he was still represented by counsel, citing Sheppard v.
State, 17 So. 3d 275 (Fla. 2009). This appeal followed.
The Florida Supreme Court has announced “a limited
exception” to the rule of striking pro se pleadings as a nullity where
a represented defendant files a pro se post-sentencing motion to
withdraw plea that “contains specific allegations that give rise to
an adversarial relationship, such as misadvice, affirmative
misrepresentations, or coercion that led to the entry of the plea.”
Sheppard, 17 So. 3d at 276-77, 286. The Court explained that
“[u]nlike a general allegation of a conflict of interest with the
lawyer, allegations that the lawyer misadvised the defendant,
misrepresented the terms of the plea, or coerced the defendant into
accepting the plea create an adversarial relationship where the
lawyer cannot both represent his client and refute the allegations.”
Id. at 286. “In narrow circumstances such as these,” the pleading
should not be stricken as a nullity; instead, the following procedure
is to be followed:
[T]he trial court should hold a limited hearing at which
the defendant, defense counsel, and the State are
present. If it appears to the trial court that an adversarial
relationship between counsel and the defendant has
arisen and the defendant's allegations are not
conclusively refuted by the record, the court should either
permit counsel to withdraw or discharge counsel and
appoint conflict-free counsel to represent the defendant.
Id. at 287.
The initial inquiry of whether the motion’s allegations give
rise to an adversarial relationship is a matter that may be decided
based on written materials alone and is, therefore, reviewed de
novo. Smith v. State, 21 So. 3d 72, 74-75 (Fla. 1st DCA 2009).
“[W]here a defendant alleges an unfortunate circumstance leading
to the entry of an uninformed plea, but does not blame the attorney
for that circumstance, the allegation does not give rise to an
adversarial relationship.” Id. (finding that the appellant’s
allegation that he was unable to review the evidence against him
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failed to allege an adversarial relationship because it did not
assign blame to defense counsel). Additionally, “general claims of
ineffectiveness of [] counsel do not sufficiently allege an
adversarial relationship requiring a Sheppard hearing.”
Echeverria v. State, 33 So. 3d 802, 803-04 (Fla. 1st DCA 2010)
(affirming the striking of the represented appellant’s pro se motion
to withdraw plea as a nullity because his allegations “that his plea
was not knowingly and voluntarily entered because his trial
counsel was ineffective in advising him whether to go to trial and
whether to accept a sentence over the original cap of six years in
prison” were “broad, general allegations of ineffectiveness of his
counsel [that] do not indicate misadvice, coercion, or
misrepresentation that would require a hearing under Sheppard”);
see also Zipperer v. State, 177 So. 3d 665, 666 (Fla. 1st DCA 2015)
(“We conclude the general ineffectiveness allegation in Zipperer’s
motion, that there were ‘options that should have been presented
to him by his trial counsel,’ was insufficient to show misadvice,
misrepresentation or coercion by counsel such that a Sheppard
hearing was required.”).
Appellant was represented by counsel at the time he filed his
pro se motion to withdraw plea, in which he alleged that his plea
was entered involuntarily and unintelligently because “he was
under the impression he was HVFO when in fact he was not” and
the court prejudiced him by erroneously sentencing him as an
HVFO. Appellant’s allegations do not assign blame to defense
counsel and do not give rise to an adversarial relationship to
require a Sheppard hearing. Therefore, we affirm the trial court’s
order striking Appellant’s pro se motion to withdraw plea.
AFFIRMED.
LEWIS, B.L. THOMAS, and ROBERTS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Andy Thomas, Public Defender, and Joel Arnold, Assistant Public
Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Quentin Humphrey,
Assistant Attorney General, Tallahassee, for Appellee.
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