Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT DAVID FRANKS, ) ) Appellant, ) ) v. ) Case No. 2D19-811 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed April 1, 2020. Appeal from the Circuit Court for Polk County; Keith Spoto, Judge. Howard L. Dimmig, II, Public Defender, and Daniel Muller, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Kelly O'Neill, Assistant Attorney General, Tampa, for Appellee. PER CURIAM. David Franks appeals his judgment and sentence for attempted possession of methamphetamine and possession of drug paraphernalia entered after he pled no contest pursuant to a negotiated agreement. At the start of Mr. Franks' sentencing hearing, Mr. Franks' counsel advised the trial court that Mr. Franks wished to withdraw his plea. The following exchange ensued: MR. JACKSON: 18CF-2265. Mr. Franks entered a plea Friday for county jail time - 10 months. We set sentencing off until today, however, Mr. Franks is advising me that he wishes to withdraw his plea. THE COURT: Well - MR. JACKSON: Legally speaking, Judge – I don't know that I have a - uhm - anything to make that argument on that. I think he needs to address that more so than me, because I think his primary complaint is me. So . . . The Court can inquire. THE COURT: Mr. Franks? THE DEFENDANT: Yes, Sir. THE COURT: . . . [W]hat are you intending this morning? THE DEFENDANT: . . . [I] plan on this afternoon - uh - trying to get myself a private attorney and address this issue with uh - that, because - uh - I mean - uh the Public Defender's Office has not - uh -given me a defense attorney - I mean - I got uh - legal representation here, but I don't feel like this - uh - Mr. Jackson has done all the things that he could have possibly done to win this case. And - I understand that you want to get this case out of the way, but - uh - I'm fighting for my life, and I - I want to fight for it. THE COURT: Alright. Anything else? Alright. What I've - what you indicated to me doesn't rise to the level [of] any . . . deficiency on Mr. Jackson's part. And – uhm certainly, my observation of this case - I would disagree with you, but - uhm - you're entitled to your opinion. . . . [W]e set off disposition for today . . . is there any reason we can't proceed to disposition at this time? [THE STATE]: No, Your Honor. THE COURT: Mr. Jackson? MR. JACKSON: No, Sir. -2- Mr. Franks was then adjudicated guilty and sentenced to 300 days in the Polk County Jail with credit for time served. Mr. Franks contends that the trial court committed fundamental error in not appointing conflict-free counsel when he sought to withdraw his plea prior to sentencing. We agree. Under Florida Rule of Criminal Procedure 3.170(f), "[t]he court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn." "A defendant is entitled to be represented by counsel at a hearing on a motion to withdraw plea because it is a critical stage of proceedings." Angeles v. State, 279 So. 3d 836, 837 (Fla. 2d DCA 2019). "[O]nce it becomes clear that a defendant and his counsel are in an adversarial relationship with respect to the defendant's entry of his plea, the defendant is entitled to the appointment of conflict-free counsel to represent him and to assist him with respect to his motion to withdraw plea." Krautheim v. State, 38 So. 3d 802, 805 (Fla. 2d DCA 2010). Mr. Franks' counsel's assertion to the trial court that he did not feel he could present any legal argument in support of Mr. Franks' motion to withdraw—along with his observation that "he [Mr. Franks] needs to address that" issue—left Mr. Franks in the untenable position of having to orally try and articulate a facially sufficient motion to withdraw his plea at his sentencing hearing without the assistance of counsel. The abandonment of his lawyer's assistance at this critical stage, under these facts, evinced a sufficiently adversarial relationship such that the trial court should have appointed Mr. Franks conflict-free counsel. See Hernandez v. State, 259 So. 3d 907, 909 (Fla. 2d DCA 2018) ("[O]nce trial counsel took a position adverse to Mr. Hernandez's obvious desire to withdraw his plea, the trial court should have either permitted counsel to withdraw or -3- discharged counsel and appointed conflict-free counsel for this critical stage of the proceedings."); Benjamin v. State, 230 So. 3d 953, 955 (Fla. 2d DCA 2017) ("Further, '[e]ven if [counsel was] unpersuaded that the reasons alleged as a basis for withdrawal rose to the level of good cause, requiring the court to allow withdrawal, it is not apparent why [counsel] chose not to argue that the trial court should exercise its discretion' to permit her client to withdraw his plea." (alterations in original) (quoting Jones v. State, 74 So. 3d 118, 121 (Fla. 1st DCA 2011))); see also Angeles, 279 So. 3d at 838 ("[I]t was clear there was an adversarial relationship based on counsel's multiple requests for the appointment of conflict-free counsel and assertions that he could not effectively argue his own ineffectiveness."). We therefore reverse the order denying Mr. Franks' motion to withdraw his plea and remand for reconsideration after the appointment of conflict- free counsel. Reversed and remanded. LaROSE, LUCAS, and ATKINSON, JJ., Concur. -4-