Brosnan P. Hart v. State

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
BROSNAN PEARSON HART,
Appellant,
v. Case No. 5D16-3050
STATE OF FLORIDA,
Appellee.
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Opinion filed March 24, 2017
Appeal from the Circuit Court
for Marion County,
Anthony M. Tatti, Judge.
James S. Purdy, Public Defender, and
Sean K. Gravel, Assistant Public Defender,
Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Allison Leigh Morris,
Assistant Attorney General, Daytona
Beach, for Appellee.
PER CURIAM.
Brosnan Pearson Hart (“Appellant”) correctly asserts, and the State agrees, that if
he was indigent, he was entitled to the appointment of counsel to assist him in the
preparation of a Florida Rule of Criminal Procedure 3.170 motion to withdraw his guilty
pleas to attempted first-degree murder and robbery with a firearm. Appellant was
represented by privately retained counsel at the plea hearing. The trial court confirmed
during a thorough plea colloquy that Appellant understood the charges, that he had
discussed the case with his counsel, and that he was freely and voluntarily pleading guilty.
He was sentenced, as agreed, to two concurrent sentences of fifteen years in prison with
a ten year minimum mandatory sentence for possession of a firearm, to be followed by
ten years of probation.
Appellant’s privately retained counsel moved to withdraw from representation
twenty eight days after the sentencing hearing, and the motion was granted. On the same
day counsel was permitted to withdraw, Appellant, then seventeen years old, drafted and
mailed a motion to withdraw his guilty pleas. The record on appeal does not indicate that
Appellant requested or was offered counsel. A hearing was held and the trial court denied
Appellant’s pro se motion. The court also denied a subsequent motion to withdraw the
guilty pleas.
Appellant argues and the State concedes that a rule 3.170 motion to withdraw plea
is a critical stage of the proceeding, entitling the defendant to representation and
assistance of counsel. Tipler v. State, 149 So. 3d 1192, 1193 (Fla. 1st DCA 2014). An
indigent defendant is entitled to the appointment of counsel. See e.g., Searcy v. State,
971 So. 2d 1008, 1011 (Fla. 3d DCA 2008) (“Many courts have held, and we agree, that
an indigent defendant has the right to court-appointed counsel to assist in the filing of a
[rule 3.170] motion.”). If counsel withdraws before a rule 3.170 motion is filed, then
counsel must be offered to an indigent defendant. Tipler, 149 So. 3d at 1193. Although
Appellant had privately retained counsel at the plea and sentencing hearings, the trial
court appointed counsel to represent him on appeal. We remand this case to the trial
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court to determine whether Appellant was indigent during the time he filed, or could have
timely filed, a motion to withdraw his pleas. If the trial court determines that Appellant
was indigent, it shall set aside its previous orders denying Appellant’s motions to withdraw
his pleas, appoint counsel for the purpose of filing a motion to withdraw pleas should
Appellant desire to so proceed, and conduct a new hearing on Appellant’s motion to
withdraw his guilty pleas.
REVERSED AND REMANDED with instructions.
PALMER and EDWARDS, JJ., and JACOBUS, B.W., Senior Judge, concur.
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