Amber Nicole Robles v. State of Florida

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT AMBER NICOLE ROBLES, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-714 March 18, 2022 Appeal from the County Court for Polk County; Hope M. Pattey and Mary Catherine Green, Judges. Howard L. Dimmig, II, Public Defender, and Joanna Beth Conner, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa; and Taylor A. Schell, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee. LaROSE, Judge. After pleading no contest to resisting an officer without violence, see § 843.02, Fla. Stat. (2020), during the county court's mass virtual arraignment, Amber Nicole Robles appeals an order withholding adjudication and imposing court costs. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A), 9.020(h)(1)(I), 9.140(b)(1)(B). Ms. Robles argues that the trial court abused its discretion in denying her motion to withdraw plea. See Fla. R. Crim. P. 3.170(l). We conclude that Ms. Robles established a manifest injustice where the trial court failed to advise her of her right to appointed counsel before she pleaded. Consequently, we reverse and remand for further proceedings. I. Background The probable cause affidavit recites that a law enforcement officer initiated a traffic stop of a vehicle that rolled through a red light. The driver, Pablo Robles, exited the vehicle. The officer directed him to step back into the vehicle. Mr. Robles told the officer not to tell him what to do, but he did as instructed. The officer explained the reason for the stop. He saw a female in the passenger seat. The officer asked the female for identification, but Mr. Robles told the officer that he had no reason to know who she was. The 2 officer replied that he "needed to identify the female." Mr. Robles "continued to be irate and curse at [the officer]." The female "advised that she did not need to provide any information." The officer continued to ask the female for identification; the driver "continued to be irate." After several minutes, Mr. Robles "rolled up his window and locked the doors to the vehicle." The officer asked the female to step out of the vehicle. She complied, but again, refused to identify herself. Upon further investigation, the officer learned that the female was Ms. Robles. He arrested her. The State charged her with resisting an officer without violence. The trial court conducted a virtual mass arraignment. At the start, the trial court addressed the defendants present: The way we will proceed this morning is that I will call your name. I will advise you of the criminal charge which has been brought against you and the maximum possible penalty. I will then turn to the State of Florida . . . and ask if [the prosecutor] has an offer in your case. In some of the situations here this morning I would be able to take your plea virtually, if you wish to accept the State's offer. . . . If you decide you want to accept the State's offer you would enter a plea of guilty or no contest. Entering a plea of guilty means that you are admitting to each and every element of—excuse me—of the offense charged. You would waive certain constitutional rights. . . . You 3 would waive certain constitutional rights, which I will go over with you in just a moment and you will be sentenced today. You can enter a plea of no contest. Which means you are neither admitting nor denying the criminal charges against you. However, you believe it is in your best interests to resolve the case today. You will waive the same constitutional rights and you will be sentenced today. You can also enter a plea of not guilty and if you do that, then we will set your case off for pretrial conference in four or five weeks, and I will discuss with you whether or not you need the representation of an attorney. The constitutional rights that you will be waiving if you enter a plea [of] guilty or no contest are as follows. You are giving up your right to remain silent. Your right not to be compelled to incriminate yourself. Your right to compel witnesses to appear and testify on your behalf through court subpoenas. The presumption of innocence and your right to require the State to prove your guilt beyond a reasonable doubt, before that presumption is removed. Your right to a trial. Your right to testify at that trial and your right to appeal any action [t]he [c]ourt has taken in your case unless [t]he [c]ourt enters an illegal judgement and sentence. .... Now, if you would like to enter a plea of not guilty, I will ask you if you [can] afford to hire your own attorney. If . . . you can then again, we will set you off for pretrial conference 4 to 5 weeks away. You will be required to return on that particular day with your counsel. If you cannot afford to hire an attorney, then I will discuss with you whether you need representation of the office of the Public Defender. If you do and you qualify, then I will provisionally appoint them today. You will have to fill out an application. There is a $50.00 fee for that application, and then there is a fee for their services at the end of 4  your case—if you are found guilty or enter a plea of guilty or no contest. I think that pretty much covers it, so I am going to go ahead and start calling the docket. (Emphasis added.) The trial court addressed Ms. Robles: THE COURT: Alright, Ma'am. You are here charged with Resisting an Officer without Force and Violence. That is a misdemeanor of the first degree, punishable by up to one year in the county jail, and/or a $l000.00 fine. [See §§ 775.082(4)(a), .083(1)(d), Fla. Stat. (2020).] Mr. Hardin, is there an offer to Ms. Robles? MR. HARDIN: Yes, Judge, it's fines and court costs and $50.00 additional cost of prosecution. THE COURT: Alright, so Ma'am, if you wish to resolve your case today, it would be for fine and court cost. Plus, $50.00 additional cost of prosecution to the State of Florida. Or you can enter a plea of not guilty and speak with an attorney. What would you like to do? THE DEFENDANT: I'll take the offer. .... THE COURT: Alright, Ma'am, were you on the line earlier when I went over the constitutional rights that you are giving up or waiving by entering into a plea today? THE DEFENDANT: Yes. THE COURT: And do you understand those rights, and more importantly do you understand you are giving up those rights by accepting this offer here today. THE DEFENDANT: Yes, Your Honor. .... 5  THE COURT: How do you plead, Ma'am, to Resisting an Officer without Force and Violence? THE DEFENDANT: No content [sic]. THE COURT: Alright Ma'am, I do find that there is a factual basis. I also find that you have freely, knowingly, and voluntarily entered into your plea and waived your constitutional rights. I am going to accept your plea. I am going to withhold adjudication. Sentence you to fine and court cost of $320.50, and then an additional $50.00 cost of prosecution to the State of Florida. These financial obligations, Ma'am, are going to be sent to the Clerks' Collections Department. You are going to receive some information in the mail within the next few days that is going to explain to you how to go about setting up a payment plan regarding these obligations. Do you understand? THE DEFENDANT: Yes, I do, Your Honor. (Emphasis added.) Ms. Robles entered her plea without the benefit of counsel. The trial court rendered a written order finding that Ms. Robles waived counsel, withholding adjudication, imposing court costs, and including an "Order of No Imprisonment" that stated that "prior to trial in this case[, the trial court] hereby files its statement of intention that imprisonment will not be imposed upon the defendant in the event of conviction." 6  The following week, Ms. Robles, through counsel, moved to withdraw her plea. She contended that the trial court failed to inform her of her right to counsel at the arraignment and that the factual basis for the plea was insufficient. The trial court held an evidentiary hearing on the motion. Ms. Robles testified that her husband stopped the vehicle. She exited the vehicle to tend to her minor child who was in the backseat. She stated that an officer told her to get back into the vehicle; she did. The officer asked for her husband's identification; he complied. The officer also asked for Ms. Robles' identification, but she refused. Ms. Robles testified that her husband rolled up his window and locked the door, but her window was down and the officer asked, again, for her identification. Ms. Robles testified that the officer did not tell her why he wanted her identification. The officer then knocked on the husband's window, the husband rolled his window down, and the officer again stated that Ms. Robles had to provide her identification. Ms. Robles, again, refused. The officer directed her to exit the vehicle, and Ms. Robles did so. The officers then searched the vehicle, telling Ms. Robles they believed there were drugs in the vehicle. None were found. Ms. Robles also 7 testified, uncontested, that she did not have money for an attorney at the time of her plea. She testified that nobody ever explained that if she could not afford an attorney, the trial court would appoint a public defender. The trial court denied the motion, finding that Ms. Robles failed to show manifest injustice or prejudice that would require the withdrawal of her plea. The trial court found that the plea colloquy showed that Ms. Robles understood and voluntarily waived her right to court appointed counsel. It also found that there was a factual basis for the plea. Ms. Robles' counsel moved the trial court to appoint the public defender to appeal the denial of her motion. The trial court granted the motion. II. Discussion On appeal, Ms. Robles argues, principally, that her plea was involuntary and a manifest injustice occurred when the trial court failed to advise her of her right to appointed counsel at arraignment. Stating that she did not knowingly, intelligently, and voluntarily waive her right to counsel, Ms. Robles insists that "[i]f she had been appointed counsel, the attorney would have realized 8 that no factual basis existed for the charge against her." See Johnson v. Nocco, No. 8:20-CV-1370-T-60JSS, 2020 WL 6701606, at *3-4 (M.D. Fla. Nov. 13, 2020) (concluding that the officer lacked probable cause to arrest the passenger for refusing to provide identification during a traffic stop "absent a reasonable suspicion that the passenger had committed, was committing, or was about to commit a criminal offense"). The State counters that Ms. "Robles acknowledged that she understood her constitutional rights and that she was waiving them when entering her plea." We review the trial court's "denial of a motion to withdraw plea for abuse of discretion." See Norman v. State, 43 So. 3d 771, 773 (Fla. 2d DCA 2010) (citing White v. State, 15 So. 3d 833, 835 (Fla. 2d DCA 2009)). "[T]o obtain relief . . . after sentencing under rule 3.170(l), a defendant must demonstrate a manifest injustice, such as involuntariness of the plea," and that withdrawal is required to correct the injustice. State v. Partlow, 840 So. 2d 1040, 1042, 1044 (Fla. 2003); see also Fla. R. App. P. 9.140(b)(2)(A)(ii)c; Ingraham v. State, 248 So. 3d 153, 154 (Fla. 4th DCA 2018) ("[T]he burden is on the defendant to prove that a manifest injustice has occurred (for example, that the plea was involuntarily entered) and that 9 withdrawal is necessary to correct this injustice."); Hernandez v. State, 204 So. 3d 128, 130 n.2 (Fla. 4th DCA 2016) ("In this case, if Appellant's plea was involuntary, that is in itself a manifest injustice."). The involuntariness of a plea based on the lack of counsel necessarily involves three determinations: (A) whether the defendant had the right to counsel, (B) whether the defendant waived her right to counsel, and (C) whether the violation of the right to counsel resulted in manifest injustice. A. Right to Counsel The parties do not dispute that Ms. Robles was an indigent defendant with the right to counsel. See generally Scott v. Illinois, 440 U.S. 367, 373-74 (1979) (providing that the constitutional right to counsel includes the right to appointed counsel for certain indigent criminal defendants); State v. Kelly, 999 So. 2d 1029, 1040 (Fla. 2008) (explaining that Florida, "through its Constitution, Rules of Criminal Procedure, and the Florida Statutes," affords the substantive right to appointed counsel to indigent criminal defendants charged with "offenses punishable by imprisonment" 10 (quoting Fla. R. Crim. P. 3.111(b)(1) (1992))); see also art. I, §§ 2, 16, Fla. Const.; § 27.51, Fla. Stat. (2020); Fla. R. Crim. P. 3.160. We observe that a judge has discretion to deny an indigent defendant appointed counsel for a misdemeanor if the judge, at least 15 days prior to trial, files in the cause a written order of no incarceration certifying that the defendant will not be incarcerated in the case pending trial or probation violation hearing, or as part of a sentence after trial, guilty or nolo contendere plea, or probation revocation. This 15-day requirement may be waived by the defendant or defense counsel. Fla. R. Crim. P. 3.111(b)(1); see also Kelly, 999 So. 2d at 1040 (explaining that under rule 3.111(b)(1) the trial court may limit an indigent criminal defendant's right to appointed counsel "by certifying, in writing, before trial that the defendant will not be imprisoned"); Finney v. State, 9 So. 3d 741, 744 (Fla. 2d DCA 2009) ("Because Finney was an indigent criminal defendant faced with imprisonment, she was entitled to counsel under article I, section 16 of the Florida Constitution, unless the court filed a written order of no incarceration." (citing Kelly, 999 So. 2d at 1040)); Case v. State, 865 So. 2d 557, 558 (Fla. 1st DCA 2003) ("A defendant who is charged with a misdemeanor punishable by possible imprisonment is entitled to counsel unless the judge timely issues a written order 11 guaranteeing that the defendant will never be incarcerated as a result of the conviction."). At the arraignment, the trial court did not guarantee Ms. Robles that she faced no imprisonment. To the contrary, it informed her that the maximum penalty was a year in jail. Further, the trial court did not render the "Order of No Imprisonment" until after Ms. Robles pleaded no contest and was sentenced. Thus, the trial court did not properly dispense with Ms. Robles' right to appointed counsel. See Case, 865 So. 2d at 558-59 (holding that the defendant had a right to counsel where the trial court "generally instructed all of the defendants in the courtroom that those charged with misdemeanors might receive as little as time served or even probation" and "did not issue a written order of no incarceration" under rule 3.111); cf. Kelly, 999 So. 2d at 1036 (reasoning that the plea form was deficient where it "provided the misleading impression that an indigent criminal defendant lacks a right to counsel so long as the trial judge is not currently considering jail time as an appropriate sentence" because the "mischaracterization relieved the trial judges of their duty to make 12 the affirmative, written, pretrial certification that the rule . . . required"). B. Waiver of Right to Counsel We now assess whether Ms. Robles waived her right to counsel. A waiver must be a knowing, intelligent, and voluntary relinquishment of a known right. Kelly, 999 So. 2d at 1039. "If a defendant does not intelligently understand when he or she is entitled to the representation of appointed counsel, then a fortiori the defendant cannot effectively waive that right." Id. The Florida Rules of Criminal Procedure provide guidelines to protect the substantive right to counsel and ensure that any waiver is knowing, intelligent, and voluntary. See Fla. R. Crim. P. 3.111(d)(2), 3.160(e), 3.172(c)(2); cf. State v. T.G., 800 So. 2d 204, 211 (Fla. 2001) ("[T]he trial court's violation of [Florida Rule of Juvenile Procedure] 8.165 resulted in the denial of the right to counsel. Rule 8.165 is not merely procedural in nature, but contains guidelines to ensure that the [juvenile's] substantive right to counsel is protected."). Specifically, before the arraignment and before accepting a plea, the trial court must advise an unrepresented defendant that she has the right to counsel and the 13 right to appointed counsel, if she cannot afford counsel.1 See Fla. R. Crim. P. 3.160(e), 3.172(c)(2). A defendant shall not be considered to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry has been made into both the accused's comprehension of that offer and the accused's capacity to make a knowing and intelligent waiver. Before determining whether the waiver is knowing and intelligent, the court shall advise the defendant of the disadvantages and dangers of self-representation. Fla. R. Crim. P. 3.111(d)(2); see Faretta v. California, 422 U.S. 806, 835-36 (1975); e.g., Johnson v. State, 255 So. 3d 934, 937 (Fla. 2d DCA 2018) ("Because plea negotiation is a critical stage and Johnson was unrepresented, the court should have offered him the assistance of counsel and if waived, inquired of him to determine whether the waiver was knowing and intelligent before permitting him to engage in plea negotiation with the State."). In this case, the trial court failed to follow the guidelines. The transcript reflects that the trial court did not advise Ms. Robles of her right to counsel or her right to appointed counsel at the 1 "[T]he responsibility to ensure that the proper procedural steps [in accepting a plea] are followed is shared by the judge, the prosecutor, and the defense attorney." Koenig v. State, 597 So. 2d 256, 258 (Fla. 1992). 14 arraignment and all subsequent proceedings. See Fla. R. Crim. P. 3.160(e), 3.172(c)(2); Kelly, 999 So. 2d at 1040. The trial court offered Ms. Robles the ability to resolve her case at the mass arraignment or the ability to "speak with an attorney" if she pleaded not guilty. The trial court's statements could have incorrectly led Ms. Robles "to believe she was only entitled to counsel if she entered a not guilty plea." See Finney, 9 So. 3d at 744 (holding that the defendant did not waive her right to counsel where "the mass plea colloquy contained conflicting and confusing information that could have led Finney to believe she was only entitled to counsel if she entered a not guilty plea"). In fact, Ms. Robles testified, without challenge, at the hearing on her motion to withdraw plea that she did not know that she was entitled to appointed counsel when she pleaded. Without knowing of her right to counsel, Ms. Robles could not make an "intelligent election" regarding that right. See generally Sardinia v. State, 168 So. 2d 674, 677 (Fla. 1964) ("[W]hen one charged with a felony is presented for arraignment, the judge should inquire as to whether he has a lawyer to represent him. If he has none, but wants one, and inquiry reveals that he is unable 15 to employ one, he should be informed of his right to state-appointed counsel, then, and at his trial. With such advice, the accused can make an intelligent election." (discussing Cutts v. State, 45 So. 491 (Fla. 1907))); Enrique v. State, 408 So. 2d 635, 639 (Fla. 3d DCA 1981) (indicating that the trial court's advice that "the accused [has the] right to appointed counsel if he is financially unable to employ counsel" signals for an uncounseled defendant to "initiate proceedings for the appointment of counsel" (citations omitted)). Additionally, if Ms. Robles wished to proceed without appointed counsel, the trial court would have been required to determine whether the waiver was made knowingly and intelligently pursuant to rule 3.111. See Case, 865 So. 2d at 558-59 (holding that the trial court's failure to determine whether a defendant's waiver of the right to counsel was made knowingly and intelligently pursuant to rule 3.111 was per se reversible error and entitled defendant to withdraw his involuntary uncounseled plea). There is no indication that the trial court ever inquired into whether Ms. Robles understood the ramifications of waiving her right to counsel. We must conclude that Ms. Robles did not validly waive her right to counsel. See Kelly, 999 So. 2d at 1039 (concluding that the 16 defendant did not validly waive his right to counsel where the evidence did not show that the defendant intelligently understood when he was entitled to appointed counsel); Finney, 9 So. 3d at 744. C. Manifest Injustice Finally, Ms. Robles asserts that the lack of counsel and lack of a factual basis to support the conviction "add up to manifest injustice and prejudice."2 Fundamental error occurs where a defendant pleads no contest without the assistance of counsel and the trial court fails to obtain a valid waiver of the right to counsel. See Sardinia, 168 So. 2d at 677 (providing that, without a valid waiver of the right to counsel, a conviction grounded on an uncounseled plea "would be constitutionally defective"); e.g., Brady v. State, 910 So. 2d 388, 390 2 The concept of manifest injustice includes prejudice. See Campbell v. State, 125 So. 3d 733, 736 (Fla. 2013) ("[W]e once again recognize that pursuant to [r]ule 3.170(l) a defendant must make a showing of manifest injustice or prejudice in order to withdraw a plea of guilty or nolo contendere following the rendition of a sentence."); see also Perez v. State, 118 So. 3d 298, 301 (Fla. 3d DCA 2013) ("The defendant has the burden of demonstrating a manifest injustice through clear proof of prejudice." (citing Williams v. State, 316 So. 2d 267, 274 (Fla. 1975))). 17 (Fla. 2d DCA 2005) (holding that "[t]he denial of Brady's right to counsel is fundamental error requiring reversal" where the trial court failed to ask Brady whether she had knowingly and intelligently waived her right to counsel); Tyler v. State, 710 So. 2d 645, 646 (Fla. 4th DCA 1998) ("It was fundamental error to require Appellant to admit or deny the pending charges without first appointing counsel or securing an informed waiver of his right to counsel."). Fundamental errors, by their very nature, prejudice the defendant. Reed v. State, 837 So. 2d 366, 370 (Fla. 2002); see, e.g., Carver v. State, 171 So. 2d 898, 898 (Fla. 2d DCA 1965) (holding that prejudice was "presumed to have resulted on the plea of guilty without benefit of counsel" where the record did not show that the petitioner waived his right to counsel). Additionally, an uncounseled plea, entered without a valid waiver of the right to counsel, is involuntary. See Fla. R. Crim. P. 3.172(a), (c)(2) (requiring the trial court to determine that a plea is voluntary by ascertaining whether the defendant adequately understands her right to counsel); Johnson v. State, 60 So. 3d 1045, 1051 (Fla. 2011) (explaining that when determining whether a plea was involuntary, the trial court may consider "whether the 18 defendant adequately understood his legal rights and voluntarily entered the plea"); cf. T.G., 800 So. 2d at 213 (holding in juvenile cases, "if the waiver of counsel is invalid as a matter of law, it follows that the guilty plea entered without advice of counsel should also be deemed involuntary as a matter of law"), recognized by State v. Dortch, 317 So. 3d 1074, 1083 (Fla. 2021). "[T]he entry of an involuntary plea constitutes a manifest injustice." Moody v. State, 210 So. 3d 748, 750 (Fla. 5th DCA 2017) (citing Partlow, 840 So. 2d at 1044). The trial court's deprivation of Ms. Robles' right to the assistance of counsel without a valid waiver was sufficient, in and of itself, to constitute prejudice and manifest injustice in this case. See Brady, 910 So. 2d at 390; Carver, 171 So. 2d at 898; cf. T.G., 800 So. 2d at 213. Accordingly, the trial court abused its discretion in denying Ms. Robles' motion to withdraw her plea. See Norman, 43 So. 3d at 773. Having concluded that the denial of Ms. Robles' right to appointed counsel entitled her to withdraw her plea, we need not reach the issue of whether there was a factual basis for the charged offense. Even if we assume that there was no record evidence to 19 support the factual basis for the offense, we would simply reverse and remand for the trial court to permit Ms. Robles to plea anew, the same relief we are already granting. See Koenig v. State, 597 So. 2d 256, 258 (Fla. 1992) (vacating the defendant's convictions and sentences and remanding with directions to the trial court to allow the defendant to plead anew where there was no record evidence supporting a factual basis for the crimes to which the defendant entered his plea). III. Conclusion The denial of Ms. Robles' right to appointed counsel was a manifest injustice. See Brady, 910 So. 2d at 390; Carver, 171 So. 2d at 898; cf. T.G., 800 So. 2d at 213. We, therefore, reverse the denial of her motion to withdraw plea, order withholding adjudication, and sentence. We remand for the trial court to properly advise Ms. Robles of her right to counsel, give Ms. Robles the ability to consult with counsel, ensure that any waiver of counsel is free and intelligent, and allow Ms. Robles to plead anew if 20 appropriate. Cf. T.G., 800 So. 2d at 213. On remand, Ms. Robles may dispute the factual basis for the offense. Reversed and remanded. SILBERMAN and BLACK, JJ., Concur. Opinion subject to revision prior to official publication. 21