SC03-2161 – Robert E Y v. State Of Florida

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State: Florida

Docket No: SC03-2161

Case Date: 01/10/2008

Preview:Supreme Court of Florida
____________ No. SC03-2161 ____________ ROBERT EY, Petitioner, vs. STATE OF FLORIDA, Respondent. [February 28, 2008] REVISED ON REHEARING CANTERO, J. In this case, we consider whether, when a defendant has committed two separate crimes and informs his attorney about both of them, the attorneys erroneous advice that his plea in one case could not be used to enhance his sentence in the other constitutes ineffective assistance of counsel. We hold that it does. We also hold, however, that such claims must be filed within the two-year deadline of Florida Rule of Criminal Procedure 3.850. Below, we (I) detail the relevant facts and procedural history of the case; (II) explain why counsels wrong advice about the effect of a plea to one crime on a sentence for another crime that already has been committed constitutes ineffective

assistance of counsel, and establish the pleading requirements for such a claim; (III) address the deadlines for timely filing such claims; and (IV) apply our holding to the facts of this case and order that Petitioner be afforded an opportunity to amend his claim if he can do so in good faith. I. THE RELEVANT FACTS AND PROCEDURAL HISTORY Petitioner was arrested for petit theft in case number 99-21195 (Case #1). According to Petitioners allegations (no evidentiary hearing has been held), he informed his counsel before the plea that he had committed another crime-- dealing in stolen property. His counsel informed him that his plea in Case #1 would not affect any subsequent sentence for his other crime. On April 10, 2000, he pled no contest in Case #1 and was placed on probation. His conviction became final in May 2000. Soon after entering his plea, he was arrested and charged in case number 00-9494 (Case #2) with three counts of dealing in stolen property. He was tried and found guilty. In November 2001, based in part on the felony conviction in Case #1, the trial court sentenced Petitioner in Case #2 as a habitual offender to thirty years in prison. In August 2002--more than two years after his conviction in Case #1 became final--Petitioner filed a pro se motion for postconviction relief attacking his conviction in that case. He alleged that his counsel provided ineffective assistance when he wrongly advised Petitioner that the conviction in Case #1 could

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not be used to enhance a sentence for dealing in stolen property (which later became Case #2). He further claimed that, had he known the conviction could be used to enhance the sentence in Case #2, he would not have pleaded guilty in Case #1. Petitioner alleged that he discovered counsels erroneous advice on August 30, 2000, when he received the States notice of sentence enhancement in Case #2. The circuit court found that the motion was untimely and dismissed it. Petitioner appealed, and the Second District Court of Appeal affirmed without elaboration. It also, however, certified the following question to be of great public importance: Whether allegations of affirmative misadvice by trial counsel on the sentence enhancing consequences of a defendants plea for future criminal behavior in an otherwise facially sufficient motion are cognizable as an ineffective assistance of counsel claim. Ey v. State, 870 So. 2d 64, 65 (Fla. 2d DCA 2003). Petitioners motion for rehearing argued that counsel gave the wrong advice in Case #1 even though the Petitioner had told him about the crimes in Case #2. The district court denied the motion. Petitioner timely petitioned for review in this Court. The case remained pending while we decided State v. Dickey, 928 So. 2d 1193, 1194 (Fla. 2006), which answered "no" to the same certified question. We then issued to Petitioner an order to show cause why Dickey did not apply to his case. In response, Petitioner argued that in Dickey, at the time the defendant pleaded guilty to the -3-

first crime he had not committed another crime, so the attorneys advice about the effect of the plea on the sentence for a future crime was merely hypothetical, while in this case Petitioner both committed and informed his counsel about the second crime before he pleaded guilty to the first one. Thus, he argued, his was a "real, immediate, and actual consequence faced at the time of the plea that counsel was fully aware of." We have jurisdiction, see art. V,

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