Full Opinion

Third District Court of Appeal State of Florida Opinion filed May 20, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D20-0495 Lower Tribunal No. 08-40953 ________________ Giosbel Hechevarria-Figuerro, Petitioner, vs. The State of Florida, Respondent. A Case of Original Jurisdiction – Habeas Corpus. Giosbel Hechevarria-Figuerro, in proper person. Ashley Moody, Attorney General, and Michael W. Mervine, Assistant Attorney General, for respondent. Before SALTER, SCALES, and MILLER, JJ. MILLER, J. Petitioner, Giosbel Hechevarria-Figuerro, seeks a writ of habeas corpus, contending the State violated his constitutional right to due process of law by deceiving him into waiving his right to pursue his direct appeal. 1 See Amend. XIV, § 1, U.S. Const.; Art. I, § 9, Fla. Const. In his petition, petitioner asserts he voluntarily dismissed his appeal in reliance upon a negotiated plea agreement that was later dishonored. For the reasons set forth below, we deny relief. FACTS AND PROCEDURAL HISTORY After a jury found him guilty of armed home invasion robbery, aggravated battery, and aggravated assault, petitioner was sentenced to concurrent terms in the state penitentiary of life, fifteen years, and five years on the respective counts. He timely filed a direct appeal. During the pendency of the appeal, petitioner engaged in plea negotiations with the State. Citing those ongoing conciliatory efforts, petitioner voluntarily dismissed his appeal and, purportedly, provided substantial assistance meriting a reduction in sentence. The parties then appeared before the trial court, jointly 1 Although designated as a petition for writ of mandamus, we treat the instant petition as a petition for writ of habeas corpus. See Fla. R. App. P. 9.040(c) (“If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.”). 2 requesting a mitigation of the previously imposed life sentence to a term of fifteen years of incarceration. The court flatly rejected the proposed resolution.2 Petitioner subsequently filed a petition for writ of habeas corpus, seeking a belated appeal, or, in the alternative, a reinstatement of his original appeal, alleging that counsel was ineffective in advising him to file a voluntary dismissal. This court relinquished jurisdiction to the trial court for the appointment of a special commissioner to issue an order to show cause, conduct an evidentiary hearing, if warranted, and assemble an appropriate report and recommendation concerning petitioner’s entitlement to a belated or reinstated appeal.3 During the period of relinquishment, the State and petitioner, aided by court- appointed counsel, again embarked upon a course of negotiations. The parties then appeared before the lower tribunal and announced they had reached an agreement. The terms of the plea bargain, essentially involving a guilty plea, followed by a 2 “[A] judge is never bound . . . by the [plea] negotiations which occur between the prosecuting attorney and the defense counsel.” Davis v. State, 308 So. 2d 27, 29 (Fla. 1975); see Jernigan v. State, 608 So. 2d 569, 570 (Fla. 1st DCA 1992) (“A trial judge is not obligated to accept a plea agreement which binds it to a specific sentence.”) (citation omitted). 3 See generally Staley v. State, 12 So. 3d 778, 780 (Fla. 1st DCA 2009) (“Henceforth, when we determine that a petition for belated appeal grounded on the alleged actions or inactions of trial counsel is legally sufficient, we will at that point relinquish jurisdiction to the lower tribunal for the purpose of appointing a special master to issue an order to show cause directed to the State Attorney, conduct an evidentiary hearing if warranted by the [S]tate’s response, and issue an appropriate report and recommendation concerning the petitioner’s entitlement to a belated appeal.”). 3 reduction in the life sentence to twenty-five years with a ten-year minimum mandatory, were dictated into the record. Acceptance was conditioned upon petitioner’s assent to abandoning his unresolved petition for belated appeal. The trial court acquiesced to the agreed-upon terms and vacated the original sentence. After conducting a protracted and comprehensive plea colloquy and administering a written waiver of rights, the lower tribunal accepted petitioner’s plea of guilty and ratified the negotiated reduction in sentence. Petitioner duly submitted a notice of voluntary dismissal of the outstanding habeas petition in the trial court. This court subsequently issued an order to show cause as to why the petition should not be dismissed. Petitioner failed to respond. Accordingly, the petition was dismissed. Nine months later, petitioner filed a motion for postconviction relief alleging ineffective assistance of counsel pursuant to Florida Rule of Criminal Procedure 3.850. The motion was summarily denied and affirmed on appeal. See Hechevarria- Figuerro v. State, 291 So. 3d 977 (Fla. 3d DCA 2019). The instant petition ensued. Petitioner now alleges the State failed to honor the plea agreement negotiated in anticipation of the voluntary dismissal of his appeal. LEGAL ANALYSIS “Article I, Section 13 of the Florida Constitution mandates the availability of the writ of habeas corpus.” 2 Fla. Practice, Appellate Practice § 9.6 (2019); see Art. 4 I, § 13, Fla. Const. By way of the writ, “an appellate court has the authority to correct a ‘manifest injustice.’” Dickerson v. State, 204 So. 3d 544, 545 (Fla. 5th DCA 2016) (citation omitted). “[T]he availability of adversarial judicial review in the form of habeas proceedings serves as a backup plan to protect against erroneous deprivations of liberty.” J.R. v. Hansen, 736 F.3d 959, 969 (11th Cir. 2013) (citation omitted). However, it “may not be used to . . . raise issues which would be untimely if considered as a motion for postconviction relief under rule 3.850.” Barnard v. State, 949 So. 2d 250, 251 (Fla. 3d DCA 2007) (citing Baker v. State, 878 So. 2d 1236, 1245-46 (Fla. 2004)). Here, the “deception” of which petitioner complains occurred when he voluntarily dismissed his direct appeal, nearly eight years ago. As his judgment and sentence became final upon our recognition of the dismissal, the petition appears to be a thinly veiled effort to revive an untimely postconviction claim. See Jones v. State, 922 So. 2d 1088, 1090 (Fla. 4th DCA 2006) (“[W]ithout a timely notice of appeal or without the granting of a belated appeal, [the] convictions and sentences became final thirty days after being imposed.”) (citation omitted). Nonetheless, as petitioner correctly urges, “to prevent a manifest injustice and a denial of due process, relief may be afforded even to a litigant raising a successive” or untimely claim, we examine the merits of the petition. Stephens v. State, 974 So. 2d 455, 457 (Fla. 2d DCA 2008) (citations omitted); see also State v. McBride, 848 5 So. 2d 287, 292 (Fla. 2003) (“[C]ollateral estoppel will not be invoked to bar relief where its application would result in a manifest injustice.”). In the instant case, notwithstanding the fact that a trial judge is vested with the sole discretion to reduce or mitigate a sentence, the State indeed recommended the fifteen-year sentence. See Childers v. State, 972 So. 2d 307, 309 (Fla. 2d DCA 2008) (“A rule 3.800(c) motion [for reduction or modification of sentence] is directed to a circuit court’s absolute discretion.”) (citation omitted); Fla. R. Crim. P. 3.800(c). The same was rejected by the lower tribunal, thus no prosecutorial misconduct may be imputed. See State v. Newsome, 549 So. 2d 818, 818 (Fla. 2d DCA 1989) (“The trial court has the discretion to accept or reject the terms of a plea agreement.”) (citation omitted). Further “[a] defendant is bound by his sworn answers during a plea colloquy.” Alfred v. State, 71 So. 3d 138, 139 (Fla. 4th DCA 2011) (citation omitted). Consequently, “[w]hen a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235 (1973). Here, while poised to receive a 6 ruling on his entitlement to belated appeal, petitioner yet again abandoned his effort.4 Hence, by pleading guilty and voluntarily renouncing his right to appellate review, he necessarily forsook his right to assert the instant due process claim. See Robinson v. State, 373 So. 2d 898, 902 (Fla. 1979) (“Once a defendant enters a plea of guilty, the only points available for an appeal concern actions which took place contemporaneously with the plea. A plea of guilty cuts off any right to an appeal from court rulings that preceded the plea in the criminal process including independent claims relating to deprivations of constitutional rights that occur prior to the entry of the guilty plea.”); see also Smith v. State, 21 So. 3d 72, 76 (Fla. 1st DCA 2009) (“It is well-settled that when a court determines whether an allegation is conclusively refuted by the record, it may rely on the sworn testimony the defendant has given in a plea colloquy . . . As long as the defendant’s sworn testimony at the plea colloquy is specific enough to refute the allegations made in a post-plea motion, it may form the basis for a determination that the allegation is conclusively refuted by the record.”) (citation omitted). Consequently, finding no “obviously unfair,” “shocking to the conscience,” Hayes v. State, 404 P.3d 676, 679 (Kan. 2017), “clear or openly unjust act,” or “extraordinary and fundamental flaw in the plea proceedings,” evincing manifest 4 In the voluntary dismissal, as penned, petitioner “agree[d] to serve [the] [twenty- five] year sentence” he now seeks to avoid. 7 injustice, we deny the petition for writ of habeas corpus. State v. Hodges, 101 N.E.3d 1045, 1049 (Ohio Ct. App. 2017). Petition denied. 8