KEVIN DEMERS CASE NO. SC13-2510 v. TRIAL COURT 10-CF …Demers' Motion to Withdraw Plea. The...
Transcript of KEVIN DEMERS CASE NO. SC13-2510 v. TRIAL COURT 10-CF …Demers' Motion to Withdraw Plea. The...
SUPREME COURT OF FLORIDA Ñe Tallahassee, Florida
KEVIN DEMERS CASE NO. SC13-2510 Defendant/Petitioner LOWER TRIBUNAL: 2D12-164
v. TRIAL COURT 10-CF-16056
STATE OF FLORIDA JURISDICTION BRIEF Plaintiff/Respondent OF PETITIONER
On Appeal from the Second District Court of Appeals of the State of Florida.
KEVIN DEMERS 23350 Janice Ave Port Charlotte, Florida 33980 Pro se Cell phone number 727.488.5546 Office number 941.625.7278
STATE OF FLORIDA ATTORNEY GENERAL'S OFFICE Concourse Center 4 3507 East Frontage Road Tampa, Florida 33607 Attorney for the Prosecutor/State of Florida
S
TABLEOFCONTENTS
PAGE TABLE OF AUTHORITIES 2
STATEMENT OF THE CASE AND FACTS 2
SUMMARY OF ARGUMENT 8
ARGUMENT 9 THE SECOND DISTRICT'S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH THE SUPREME COURT OF THE STATE OF FLORIDA DECISIONS AND FROM ANOTHER DISTRICT COURT OF APPEAL DECISION
CONCLUSION 14
CERTIFICATE OF SERVICE 15
CERTIFICATE OF TYPE SIZE AND STYLE 15
TABLE OF AUTHORITIES
PAGE
CASES
Macarthy v. United States 394 US 464 11
Aravena v. Miami-Dade County, 928 So. 2"d 1163, 1166-67 (Fla.2006) 13
Counts v. State 376 So. 2d 59 (Fla. 1979) 14
's 2
Hall v. State 316 So. 2d 279 (Fla. 1975) 11
Williams v. State, 316 So. 2"°267 (1975 Fla.) 4,8,10
Ross v. State, 566 So. 2"d 356 (4th 1990) 4,8
OTHER AUTHORTIES
Art V., section (b)(3), Fla. Const. 4
Criminal Procedure Rule 3.172 5
CPR 3.171(b)(2)(B): 6,7
STATEMENT OF THE CASE AND FACTS
This case comes to this Court following a 3-0 decision by the
Second District Court of Appeals sustaining the Trial Courts denial of
Demers' Motion to Withdraw Plea. The decision stated that the plea
was voluntary because the Defendant knew he had entered a guilty
plea due to two tangential mention of the word 'guilty'. This decision
was despite the colloquy not being a model of clarity: the Court never
asked the Defendant if the underlying facts were what he was
pleading to; the Court never asked the Defendant what he was
pleading; and finally, the Defendant never entered an oral
pronouncement of any form of plea (guilty, nolo contendere nor
Alford).
's 3
Petitioner argues that this Court has discretionary jurisdiction to
review the decision by the Second District Appellate Court (possibly a
case of first impression), as it expressly and directly coriflicts with
many decisions by this Supreme Court on the same question of law
(what defines a voluntary plea) in Williams v. State, 316 So. 2"d 267
(1975 Fla.) and subsequently the Forth District Appellate Court in
Ross v. State, 566 So. 2"d 356 (4th 1990). See Art V., section (b)(3),
Fla. Const.
The Second District Court decision states that two tangential
mentions of the word 'guilty' in the plea colloquy by judge is sufficient
to satisfy the standard of a voluntary plea despite the Defendant
never being asked what plea he is entering and the Defendant never
makes an open oral pronouncement in open court of guilt in direct
and express conflict with the decision of this Court in Williams (supra)
and its subsequent application in Ross. (supra). The conflict lays
with the difference in how the Supreme Court defines 'voluntary plea'
and the scant indifference the Court yields to that standard in the
instant case. The Ross Court employs the Standard set in Williams
and the Second District in this matter employs no known standard
's 4
seemingly pulled from the air since the Second District makes
absolutely no citations of case law, or statutory law in its decision.
Under Criminal Procedure Rule 3.172: Acceptance of Guilty
or Nolo Contendere Plea, (a)(b)(c) and (e) it in part states:
(a) Voluntariness; Factual basis. Before accepting a plea of
guilty or nolo contendere, the Trial judge shall determine
that the plea is voluntarily entered and that a factual basis
for the plea exists. Counsel for the prosecution and the
defense shall assist the trial judge in the function.
(b) Open Court. All pleas shall be taken in open court, except
that when good cause is shown a plea may be taken in
camera.
(c) Determination of Voluntariness. Except when a
defendant is not present for a plea, pursuant to the
provisions of rule 3.180(d), the trial judge should, when
determining voluntariness, place the defendant under oath
and shall address the defendant personally and shall
determine that he or she understands:
(3) that upon a plea of guilty, or nolo contendere without
express reservation of the right to appeal, he or she gives
s 5
up the right to appeal all matters relating to the judgment,
including the issue of guilt or innocence, but does not
impair the right to review by appropriate collateral attack;
(e) Acknowledgment by Defendant. Before the trial judge
accepts a guilty or nolo contendere plea, the judge must
determine that the defendant either (1) acknowledges his or her
guilt or (2) acknowledges that he or she feels the plea to be in
his or her best interest, while maintaining his or her innocence.
In contrast to the Supreme Court decisions, the Second
District decision has a complete absence of case law in its less than 2
page decision. It does give the Trial Court a slight admonishment of
the importance of clarity and completeness of a plea colloquy (noting
CPR 3.172) Where the court does mention the two tangential
mentions of the word 'guilty' they do not mention that Defendant did
not actually enter any plea at all; Defendant was never asked to
acknowledge the facts underlying the plea; Defendant was not asked
what plea was being entered; nor did the Court make an oral
pronouncement of they were accepting a guilty.
Finally, Second District was silent on the fact the State did not
fully state what the full plea bargain was, in that it omitted what the
's 6
agreed on plea was to assist the Court as require by CPR 3.172(e)
(supra) as well as CPR 3.171(b)(2)(B).
CPR 3.171(b)(2)(B): Plea Discussions and
Agreements; [in part] If Defendant represents himself, all
discussions between the defendant and the prosecuting
attorney shall be of record. Responsibility of the Prosecuting
Attorney; (2) The prosecuting Attorney SHALL (emphasis
added) (B) maintain the record of direct discussions with a
defendant who represents himself and make the record
available to the trial judge upon the entry of a plea arising from
these discussions.
On the 5th of July 2011, the Defendant appeared in the Trial
Court for a plea hearing. During the lengthy plea colloquy, which the
Trial Court admits and the Appellate Court admonished, was 'not a
model of clarity', the Court never asked the Defendant what he is
pleading; the Defendant never entered a plea.
The best indicia of a plea being voluntary is for the Court to ask
the Defendant what he/she is pleading and is she/he pleading to a
stated set of facts, and then the Defendant responding with a
yes/guilty (no contest or Alford). Macarthy v. United States 394 US
464 If that occurred in this case it would seem that the Second
District Court would have said so; but it did not, thus if maybe inferred
that Defendant did not enter a plea nor did he acknowledge a set of
facts underlying a voluntary plea. The same inference can be made
for whether the State prosecutor complied with the Criminal
Procedure Rules and read into the record the complete plea
agreement (specifically what the agreed plea was).
Further the Appellate Court states, 'We are confident however,
that a more carefully crafted plea colloquy and an examination of the
completed form (plea form) would have made a motion to withdraw
plea unnecessary.' The Trial Court never reviewed the plea form to
see if it was consistent with the plea the Court admitted assumed the
Defendant was entering. The Trial Court admits an inadequate plea
colloquy, the Appellate Court asserts that the colloquy was
inadequate and was the cause of misunderstanding, yet, both Court
place the blame on the Defendant and each assert an assumption
that the Defendant knew he was pleading guilty despite the lack of
any indicia of a voluntary plea.
The Appellate Court assumed that the Defendant erred in
checking the "nolo contendere" box instead of the guilty box, never
S 8
considering that that was a true and voluntary act, not a mistake and
to the best of his knowledge and understanding of the proceeding,
nolo contendere was the plea he was entering: the plea form is the
only indicia of what Defendant intended. Defendant never intended
to enter a guilty plea.
Demers filed a timely notice to invoke, and this jurisdictional
brief follows.
SUMMARY OF ARGUMENT
The unanimous decision by the Second District Appeals Court,
expressly and directly conflicts with Williams (SC)and Ross (4*
District). (supra) Demers was never asked to enter a plea and never
entered an oral plea in open court. The Second District's unanimous
decision is unprecedented in scope and in its implications: Courts
could quash a Defendant's Due Process Rights (especially pro se
Defendants) with colloquies that lack clarity and integrity, where the
Defendant is never ask what the Defendant pleads and thereby thrust
an unknowing involuntary guilty plea upon the Defendant while
addled in the newness with a frightened and confusing frame of mind
of the moment.
's 9
The State and the Court has Duties; the Defendant has Rights.
This is not giving the pro se or any Defendant any special
considerations. These assignments of duty and guarantee of rights
are promulgated in the Rules of Criminal Procedure and assured in
Case Law up to the U.S. Supreme Court.
ARGUMENT
THE SECOND DISTRICT'S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS FROM THE SUPREME
COURT CASES AND OTHER DISTRICT COURTS OF APPEAL
lt is impossible to determine what precisely the Second
District's legal reasoning was in formulating its decision due to the
fact that they fail to make a legal argument by its failure to cite any
case law and only mention one Criminal Procedure Rule 3.172(c) and
no other statutory rule or law. What we can compare are decisions
and what legal reasoning is absent in the Second District's opinion
and what is present in other District Courts.
The main reasoning, absent in the Second Appellate Court
decision, is that found in Williams (supra) [also a Second District
Appellate case] the ruling Supreme Court case for determining the
voluntariness of a plea. In Williams the Court ruled [Citing US
Supreme Court case Macarthy v. United States 394 US 464] "The
's 10
plea in McCarthy was entered without any inquiry of the defendant
concerning the offense. He was not even asked the standard
question 'Are you entering this plea of guilty to the offense because
you are guilty and for no other reason."(Williams @ 273) Like
Williams, this Court never asked that standard question; never asked
if the facts recited by the State were the facts he was pleading
(anything) to.
The Williams Court outlined the Standard for Voluntariness of
a Plea:
1. No plea
shall be accepted by a court without first in open court
without first determining . . . that the circumstances
surrounding the plea reflect a full understanding of the
significance of the plea and its voluntariness and that there
is a factual basis for the plea;
2. Three
essential requirements for taking a plea:
a.The plea must be voluntary
b. Defendant must understand the charge
c. Must be a factual basis
's 11
3. The trial
court may satisfy itself that there is a factual basis for a guilty
plea by statements and admissions made by the defendant
in Hall v. State 316 So. 2d 279 (Fla. 1975) that Court reviewed
a guilty plea: "Court: Now you plead guilty to this charge. Did
anybody threaten you in any way to force you to plead guilty?
Defendant: No Sir. Court: Did anybody promise you any reward or
any leniency, or special consideration by this Court to induce you to
tender this plea of guilty? Defendant: No, sir. Court: Did you plead
guilty freely and voluntarily? Defendant: Yes, sir. Court: Do you
know of any reason why the Court should not accept your tendered
plea of guilty and sentence you according to law? Defendant: No,
sir." The Florida Supreme Court stated, "this was not a model guilty
plea inquiry, and it did not comply with Rule 3.170 . . . the
responsibility to see that proper procedural steps are followed does
not rest solely with the trial judge: both trial counsel are ethically
bound to share this responsibility. . . the guilty plea procedures are
designed to protect the defendant. (@280)
In the brief colloquy in Hall, the trial court states the word guilty
5 times. In the instant case the Court uses the word guilty twice and
's 12
never asks Appellant a direct question regarding what Appellant is
pleading, and as evidenced by the plea agreement /plea form,
Appellant only desired to enter a nolo contendere plea.
The Second District Court, in the instant case, only addressed
the two tangential statements that contain the word 'guilty' The
Decision is void of any discussion as to what indicia of a voluntary
plea as stated in Williams. Jurisdictional conflict exists. See Aravena
v. Miami-Dade County, 928 So. 2"d 1163, 1166-67 (Fla.2006) [one
test for conflicting jurisdiction is whether the holdings of two cases
"are irreconcilable".
The best indicia of a plea being voluntary is for the Court to ask
the Defendant what he/she is pleading and is she/he pleading to a
stated set of facts, and then the Defendant responding with a
yes/guilty (no contest or Alford). If that occurred in this case it would
seem that the Second District Court would have said cited the Trial
Court doing so; but it did not, thus it may be inferred that Demers did
not enter a plea nor did he acknowledge a set of facts underlying the
charge he was not pleading to.
In Ross v State 566 So.2d 356 (4th District 1990)_after the
State and defense counsel informed the Trial Court that the
's 13
Defendant would enter a nolo contendere plea, the Court immediately
took a guilty plea. The Ross Court aske d directly "And you're
pleading guilty freely and voluntarily?" Defendant Rossresponded
"Yes." That reviewing Court cited Williams v State 316 So.2d 267
(Fla.1975), which said, "the taking of a guilty [nolo contendere] plea
is one of the most important tasks of a trial judge. As many as ninety
percent of the criminal felony cases in a particular jurisdiction may be
disposed of by a guilty plea. Ross served an admonishment to the
trial court that it was a mistake of the Court and the Attorneys stating
that they were "asleep at the wheel".
The Second Appellate Court was asleep at the wheel in the
instant case in that on one of the statements containing the word
guilty: "if you enter a guilty plea and receive a withhold of
adjudication, you won't have the right to take an appeal." is not quite
accurate. In Counts v. State 376 So. 2d 59 (Fla. 1979) the Court
states, "gives up right to appeal all matters relating to the judgment,
including the issue of guilt or innocence, but does not impair his right
to review by appropriate collateral attack." Thus, one use of the word
guilty is a misstatement of law.
CONCLUSION
's 14
It is respectfully requested that this Court accept jurisdiction to resolve the conflict between the Second District Appellate Court and this Court and the Fourth District Appellate Court, where only two mentions of the word 'guilty' in tangential matters in a plea colloquy and where the Defendant orally makes no open court plea and does not admit to any underlying facts in the case, as to whether that is a voluntary plea.
K S. De ers
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing document was served on the State of Florida Attorney General's office for the 2"d District by ordinary mail to Concourse Center 4, 3507 East Frontage Road, Tampa, Florida 33607 on or before filing date of document.
CERTIFICATEOF TYPE SIZE AND STYLE
The undersigned certifies that this brief was submitted to the Supreme Court in accordance with R le of Appellate Procedure Rule 9.2210(a)(2) in that it employed Ariel point font.
. Demers
's 15
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING . . . . . ,. . MOTION AND IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLOR1DA
SECOND DIST CT
KEVIN S. DEMERS,
Appellant,. ) r . So
) ase No. 2D12- 647
STATE OF FLORiDA .
Appellee.
Opinion filed November 8, 2013.
Appeal.from.the Circuit Court for e . . Ifflisborough County; Scott stephens, Judge.
Kevin $. Demers, pro se.
Pamela Jo Bondi, Attomey General, Tallahassee, and Dawn A. Tiffin,.Assistant Attomey General, Tampa, for Appellee.
LaRQGE, Jtrdge.
Kevin Demers appeals an order denying his rnotion to.withdraw a guilty
plea. We affirm on all issues but-write toismphasize the importance of c arity.and
completeness in the plea colloqúy. §eee_ Fla. 1 Örim. P. 1172(c).
The State charged Mr. Demers with two count of bayefy on a law
or ement officer an¢one count of trespass He represented himself. Mr De ers
entered a negotiated plea to one count of battery on a law enforcement officer in
exchange for the State's noll prosse of the other two counts, ä withhold of adjud cation
hd a sëntánce of eighteêh ò1onths of protiétát r Øemèrs nãw arguê t a uilty
pies was involuntary because he thought he was pleading no contest. Allegedly he
oûlà t t ve pleaded guilty because it wåuld foreclose arciÝil suit fo wrong ul rrest
and vould affect adverseiy his business opportunities.
The trial court conducted a lengthy plea colloquy, during which it
repeatedly used the words "the plea," but farely in connection with the word "dulty "
w however, the trial court referred to a gtility plea telling Mr. Demets, "Y don't
taple% guilty(instead, you could have Altriah. . f youenter a guilty a
eceive a withhold of adjudication, you won't have the right to take art appeal." he trial
court never used the words "no contest" or "nolo contendere." After the colloquy Mr.
Demers completed the plea form himself, signed it, and told the trial court that
eyep/thing on the form was correct. However, he checked the-"colo contehdere box
tather than the "guilty" bóx. Apparently, the trial court did not review the completed
form. The judgment and sentence reflect a guilty plea.
According to Mr. Demers, he believeil he lád pleaded no contes it he
received a copy of his judgment and sentence. He filed a motion to withdraw Ns plea,
setting that he never enteFed a guilty plea. Ailer a hearing, the trial court found that
while the plea colloquy "is not a model of clarity " Mr. Demers knew he was eMering a
guilty plea. The trial court dènied the motion to withdraw the plea.
- 2
The hearing tränäcript confirms t a ibedrial co rfs p eä c 04uy, though
acking in precision, twice mentioned plead ng guilty Cònsequent y emers knew
that the trial court was accepting a guilty p ea. We e to er t e déd of the
motion. We are confident, however, th t a räofe a eful y cranedpfea colloquy and an
examination of the completed plea form.wou d have m de a not ón to ithdraw the pl
Unnecessary.. . . �042 . .
Affirmed.
cutS
ALTENBERND, Judge, Concurring. ..
I conpur irt thé decisiòn to afårm the denial of Nlr en è postc nyict on
motion to withdraw his plea. I write to cornment that it1s not obvioub föme thát Mr.
Deiners would have had a better chance in a lawsuit alleging fáise arrest against the
police officer who arrestèd him for battery on a law enforcement officer if he had
leaded'no.ciontest as esinpareddo guilty. The difference between these twö pleas1n
modern practiöe is slight. Sge Behm v. Carnpbell, 925 So 2d Ö70, 107 (Fla. 5th DCA
2006)lhdiding that arrestee who pleaded no contest to iesi til a ëst was for o d
- from collaterally attacking the legality of that arrest in a civil act dn); see also
Montgomery v. Étate, Ó97'So. �575<l (Fla. 20Ó�540).1�57682 JÅr; Demersiusiness opportun ties
are undoubtedly most affected by the fact that the trial court withh~eld adjudication,
- 3
2
r
reyentirig h m from being t eate¼as a conviated felon his e cuded as t e . t042 r,. .
was ready tô be woñïfor ñal ¡À which Mr. Derners änned td epre ent rùse ... .. . .;;;q. . :..;· .... . . . ... .
. The trial court prudently tged thejtate t make a fin I effort to gotjgte a plea and
Caf9fU e ained tGW Demetirthe benefit of the State a offer t snowtheir a öurt
hhO adjÜdication .
-
9 . . . . . - . = .. = . . . t042 t042 . . 9
ç .. . . . . . . . .. ., . , .. .
0. . . " 9 L e
P . . - j - .
. >>
e a .r .
2 2 /
r
- a
>
-4