Florida Criminal Appeals Attorney Law

Appellate Law, Criminal Defense and Appeals and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit

Tag: waive

Pagan v. State, No. 2D11-3804: Florida’s Second DCA Issues Opinion Touching On Issue of Plea Bargain Waivers of Claims of Ineffective Assistance of Counsel

On November 14, 2012, the Second DCA issued an opinion in Pagan v. State, No. 2D11-3804, wherein the court held that the trial court erred in summarily denying Pagan’s Rule 3.170(l) motion to withdraw his plea based on misleading advice of counsel.  According to the opinion, after Pagan was sentenced to 30 years for his involvement in the death of a child, Pagan moved to withdraw his plea.  The trial court appointed conflict free counsel to represent Pagan, and a hearing was set.  Just before the hearing commenced, the State offered Pagan a reduced sentence of 15 years in exchange for Pagan’s waiver of any right to seek collateral relief.  The court gave Pagan time to consult with his attorney, after which Pagan accepted the State’s offer.  The court resentenced him to the lesser term, remarking to Pagan that “you would be agreeing that you will withdraw this motion to withdraw your plea and you will also be agreeing that you will not file any further post-conviction motions attempting to reduce this sentence that I am about to impose.”  Later the court added: “And just to reiterate part of the deal is you will not be filing any more post-conviction motions.  This—this is it. You filed it.  It worked for you.”  After resentencing, Pagan filed several Rule 3.850 motions, alleging that he received ineffective assistance in connection with the State’s offer to resolve his rule 3.170(l) motion.  Predictably, the trial court denied each of his motions.  On appeal, the Second District reversed.

In support of its holding, the Court first noted that a Rule 3.170(l) motion is not a postconviction matter, and that a defendant is entitled to effective assistance of counsel in connection with such motion.  See Pagan, slip op., pg. 3.  The Court also observed that “a defendant can waive his right to collaterally attack his judgment and sentence when the waiver is expressly stated in the plea agreement and he knowingly and voluntarily agrees to the waiver.”  See Pagan, slip op., pg. 4 (citing Stahl v. State, 972 So. 2d 1013, 1015 (Fla. 2d DCA 2008); Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005)). However, “ineffective assistance of counsel claims attacking the advice received from counsel in entering into the plea and waiver cannot be waived.”  See Id.

While the opinion seems to have reached the right result by holding that Pagan did not waive his claim of ineffective assistance of counsel, it is troubling that the court’s opinion closed with a cautionary note:

We remand to the circuit court to conduct an evidentiary hearing on
Pagan’s allegations of ineffective assistance in connection with the agreement to
resolve his rule 3.170(l) motion. We caution that Pagan may subject himself to a worse
result if he goes forward with this process, but that is his decision to make.

Pagan, slip op. pg. 4.

I also find it troubling that the Court failed to address the obvious ethical issue presented by the opinion: whether a defendant can be offered a plea bargain that requires him or her to waive future claims of ineffective assistance of counsel (or prosecutorial misconduct)?  Florida’s criminal appeals and criminal defense attorneys may remember that this past August, the Professional Ethics Committee of the Florida Bar issued Proposed Ethics Advisory Opinion 12-1, which states that plea bargains which require defendants to waive future claims of prosecutorial misconduct or ineffective assistance of counsel violate Bar rules.

To view a few of the articles that appeared in the Florida Bar News regarding the Advisory Opinion, click here and here.  Although the Advisory Opinion has not yet been adopted by the Florida Bar Board of Governors, if there is no appeal of the proposed opinion, the Advisory Opinion will become final.

Some Encouraging News for Florida Criminal Defense Attorneys

As I was reading the latest edition of the Florida Bar News, dated October 15, 2011, I came across two points of encouraging news that I wanted to pass along on this rainy day in South Florida.

The first report states that the Florida Bar’s Professional Ethics Committee has voted to consider issuing an advisory opinion saying that it would be unethical for prosecutors to ask, as part of a plea bargain, that criminal defendants waive future claims of prosecutorial misconduct, and for criminal defense attorneys to advise their clients to waive any claim of ineffective assistance of counsel.  From my experience, the practice of requiring waivers as part of the plea bargaining process is more prevalent in Federal court than in State court.  While I served as a Law Clerk in the Southern District of Florida, I was amazed to see that so many plea offers contained waivers of such basic rights to due process.  While I am glad to see that the issue is being given serious consideration, I find it really sad that the practice of requiring Florida’s criminal defendants to waive some of their basic rights to due process can only be stopped by the issuance of a formal ethics opinion.

In a second report, the economics behind Florida’s death penalty are discussed.  According to the Florida legislators who back HB 4051, it is actually more expensive to carry out the death penalty than to house prisoners for life.  If passed, HB 4051 would eliminate Florida’s death penalty.  (Note: a previous Senate Bill, SB 1898, died in committee in May of 2011).

Finally, in a third report, the Florida Bar’s Criminal Law Section has decided to begin a review of Florida’s death penalty procedures.   Those who read my blog are familiar with my thoughts on the issue, so I won’t say anything more than “It’s about time!”  Since I’m a skeptic when it comes to government, I’m not going to sit here and expect major changes overnight, but at least someone in Tallahassee, apart from the Florida Supreme Court dissenting Justices, is starting to take a look at the serious problems with Florida’s death penalty procedures.


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