Gunn v. State, 841 So. 2d 629 (Fla. 2d DCA 2003). · Go Syfert
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Gunn v. State, 841 So. 2d 629 (Fla. 2d DCA 2003). Cases Citing This Book View Copy Cite
34 citation events (34 in the last 25 years) across 3 distinct courts.
Strongest positive: Webster v. Secretary, Florida Department of Corrections (flmd, 2020-10-14)
Treatment trajectory · 2003 → 2026 · click a year to view as-of
2003 2014 2026
Top citers, strongest first. 24 distinct citers. How cited ↗
discussed Cited as authority (rule) Webster v. Secretary, Florida Department of Corrections
M.D. Fla. · 2020 · confidence medium
As Respondent points out, to withdraw a guilty plea before sentencing, “the defendant has the burden to show good and sufficient cause to support the withdrawal.” (Doc. 15 at 34 (citing Gunn v. State, 841 So. 2d 629, 630 (Fla. 2d DCA 2003); Fla. R.
discussed Cited as authority (rule) Hernandez v. State
Fla. Dist. Ct. App. · 2016 · confidence medium
See Hall v. State, 51 So.3d 1283, 1284 (Fla. 4th DCA 2011) (remanding for evidentiary hearing on basis of post-conviction claim that counsel misrepresented that if defendant accepted the plea, his record would be sealed or expunged); Gunn v. State, 841 So.2d 629, 631 (Fla. 2d DCA 2003) (holding defendant merited a hearing because his attorney possibly mi-sadvised him regarding the collateral consequence of whether defendant would be labeled ,a sexual predator under the Sexual Predators Apt); LaMonica v. State, 732 So.2d 1175, 1176 (Fla. 4th DCA 1999) (holding defendant merited a hearing becaus…
discussed Cited as authority (rule) Delarosa v. State
Fla. Dist. Ct. App. · 2005 · confidence medium
State v. Partlow, 840 So.2d 1040, 1043 (Fla.2003)(holding that the sexual offender registration requirement is a collateral consequence of a plea to a sexual offense because the registration requirement has absolutely no effect on the range of the defendant's punishment for the crime); Gunn v. State, 841 So.2d 629, 631 (Fla. 2d DCA 2003)(confirming that designation as either a sexual offender or predator is a collateral consequence about which a defendant does not have to be advised at the time of a plea).
discussed Cited as authority (rule) Jones v. State
Fla. Dist. Ct. App. · 2004 · confidence medium
Cf. Newsome v. State, 877 So.2d 938, 940 (Fla. 2d DCA 2004) (“[Gjiven Newsome’s allegations that counsel was ineffective, that counsel misadvised him about the minimum and maximum penalties he faced, and that counsel had coerced him to sign the plea, we conclude that Newsome's counsel’s position had become adverse to Newsome’s, thus entitling Newsome to the appointment of conflict-free counsel” at the hearing on Newsome's motion to withdraw plea); Gunn v. State, 841 So.2d 629, 631 (Fla. 2d DCA 2003) ("Once a conflict becomes apparent between the defendant and defense counsel during a…
cited Cited as authority (rule) Boule v. State
Fla. Dist. Ct. App. · 2004 · confidence medium
Crawley v. State, 851 So.2d 739, 740 (Fla. 2d DCA 2003); Gunn v. State, 841 So.2d 629, 631 (Fla. 2d DCA 2003).
cited Cited as authority (rule) Taylor v. State
Fla. Dist. Ct. App. · 2003 · confidence medium
Gunn v. State, 841 So.2d 629, 631 (Fla. 2d DCA 2003).
cited Cited "see" Collins v. State
Fla. Dist. Ct. App. · 2014 · signal: see · confidence high
See O’Neill v. State, 841 So.2d 629, 629 (Fla. 2d DCA 2003).
discussed Cited "see" Moseley v. State
Fla. Dist. Ct. App. · 2014 · signal: see · confidence high
See Gunn v. State, 841 So.2d 629, 631 (Fla. 2d DCA 2003) (finding that affirmative misadvice regarding a sexual predator designation constitutes a facially sufficient claim of ineffective assistance of counsel that provides a basis for withdrawing a plea); Roberti v. State, 782 So.2d 919, 920 (Fla. 2d DCA 2001) (“Affirmative misadvice about even a collateral consequence of a plea constitutes ineffective assistance of counsel and provides a basis on which to withdraw the plea.”).
discussed Cited "see" Jones v. State
Fla. Dist. Ct. App. · 2011 · signal: see · confidence high
See Gunn v. State, 841 So.2d 629, 631 (Fla. 2d DCA 2003) (holding that the trial court should have provided the appellant conflict-free counsel to represent him on his motion to withdraw plea because defense counsel took an adversarial position by refuting his claim that defense counsel denied him the right to see a videotaped deposition of the alleged victim).
cited Cited "see" Rybolt v. State
Fla. Dist. Ct. App. · 2010 · signal: see · confidence high
See Gunn v. State, 841 So.2d 629 (Fla. 2d DCA 2003).
discussed Cited "see" Mapp v. State
Fla. Dist. Ct. App. · 2009 · signal: see · confidence high
See O’Neill v. State, 841 So.2d 629 (Fla. 2d DCA 2003); Jackson v. State, 793 So.2d 117, 118 (Fla. 2d DCA 2001) (“Although the trial court’s untimely order properly granted relief on some of the sentencing errors raised in the motion, that order is a nullity because it was untimely entered.”).
cited Cited "see" Richardson v. State
Fla. Dist. Ct. App. · 2005 · signal: see · confidence high
See O'Neill v. State, 841 So.2d 629 , 629 (Fla. 2d DCA 2003) (citing Jackson v. State, 793 So.2d 117, 118 (Fla. 2d DCA 2001)).
cited Cited "see" Cabrera v. State
Fla. Dist. Ct. App. · 2005 · signal: see · confidence high
See Gunn v. State, 841 So.2d 629 (Fla. 2d DCA 2003); Graham v. State, 779 So.2d 604 (Fla. 2d DCA 2001).
cited Cited "see" Diaz v. State
Fla. Dist. Ct. App. · 2005 · signal: see · confidence high
See O'Neill v. State, 841 So.2d 629 , 629 (Fla. 2d DCA 2003).
cited Cited "see" Wagner v. State
Fla. Dist. Ct. App. · 2005 · signal: see · confidence high
See Gunn v. State, 841 So.2d 629 (Fla. 2d DCA 2003); Brown v. State, 428 So.2d 369 (Fla. 5th DCA 1983); Adler v. State, 382 So.2d 1298 (Fla. 3d DCA 1980).
cited Cited "see" Bass v. State
Fla. Dist. Ct. App. · 2004 · signal: see · confidence high
See O’Neill v. State, 841 So.2d 629, 629 (Fla. 2d DCA 2003).
cited Cited "see" Tucker v. State
Fla. Dist. Ct. App. · 2004 · signal: see · confidence high
See O'Neill v. State, 841 So.2d 629 (Fla. 2d DCA 2003); Jackson v. State, 793 So.2d 117 (Fla. 2d DCA 2001).
cited Cited "see" Smith v. State
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
See O'Neill v. State, 841 So.2d 629 , 629 (Fla. 2d DCA 2003); Jackson v. State, 793 So.2d 117, 118 (Fla. 2d DCA 2001).
cited Cited "see" Smith v. State
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
See O’Neill v. State, 841 So.2d 629, 629 (Fla. 2d DCA 2003); Jackson v. State, 793 So.2d 117, 118 (Fla. 2d DCA 2001).
cited Cited "see" Hiers v. State
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
See Gunn v. State, 841 So.2d 629 (Fla. 2d DCA 2003).
cited Cited "see" Jones v. State
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
See Gunn v. State, 841 So.2d 629, 631 (Fla. 2d DCA 2003); Watrous v. State, 793 So.2d 6, 11 (Fla. 2d DCA 2001).
cited Cited "see" Garcia v. State
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
See Gunn v. State, 841 So.2d 629 (Fla. 2d DCA 2003); Jones v. State, 827 So.2d 1086 (Fla. 1st DCA 2002); Padgett v. State, 743 So.2d 70 (Fla. 4th DCA 1999).
discussed Cited "see, e.g." Council v. State
Fla. Dist. Ct. App. · 2009 · signal: see also · confidence medium
An involuntary plea is a ground for withdrawal under rule 9.140(b)(2)(A)(ii)(e). “ ‘Where a defendant seeks to withdraw his plea on the ground that it was coerced by his attorney, the trial court must either appoint conflict-free counsel or permit the defendant the opportunity to secure the same and, then, conduct an evidentiary hearing on the motion to withdraw plea.’ ” Brown v. State, 835 So.2d 402, 403 (Fla. 2d DCA 2003) (quoting Lingenfelser v. State, 734 So.2d 472, 472-73 (Fla. 4th DCA 1999)); see also Gunn v. State, 841 So.2d 629, 631 (Fla. 2d DCA 2003).
cited Cited "see, e.g." Brooks v. State
Fla. Dist. Ct. App. · 2003 · signal: see also · confidence medium
P. 3.800(b)(1)(B); see also O’Neill v. State, 841 So.2d 629, 629 (Fla. 2d DCA 2003) (citation omitted). .
Retrieving the full opinion text from the archive…
Kenneth GUNN, Appellant,
v.
STATE of Florida, Appellee.
2D00-4617.
District Court of Appeal of Florida, Second District.
Apr 4, 2003.
841 So. 2d 629
Silberman.
Cited by 20 opinions  |  Published

[*630] James Marion Moorman, Public Defender, and Robert F. Moeller, Assistant Public Defender, Bartow, for Appellant.

Charles R. Crist, Jr., Attorney General, Tallahassee, and Ha T. Dao, Assistant Attorney General, Tampa, for Appellee.

SILBERMAN, Judge.

Kenneth Gunn appeals his judgment and sentences for two counts of sexual battery when the victim was physically incapacitated, one count of attempt to commit sexual battery when the victim was physically incapacitated, and one count of home invasion robbery. He argues that the trial court erred in denying his motion to withdraw plea prior to sentencing and by not affording him conflict-free counsel at the hearing on his motion. We reverse and remand for an evidentiary hearing with[*631] conflict-free counsel on the motion to withdraw plea.

On August 14, 2000, Gunn appeared with defense counsel for a plea hearing. Gunn entered a guilty plea in exchange for twenty-four years' imprisonment followed by five years' probation. On September 20, 2000, Gunn appeared for sentencing but indicated that he desired to withdraw his plea. He claimed that he had been denied his right to see what was on the videotaped deposition of the alleged victim and that his attorney had assured him that he would not be registered as a sexual predator if he entered the plea.

Defense counsel responded to Gunn's claim concerning the videotape, stating that on two occasions he set up the videotape for viewing, but Gunn refused to watch. Defense counsel did not respond to the claim that he misadvised Gunn regarding registration as a sexual predator.

The trial court denied Gunn's request to withdraw his plea and proceeded to sentence him in accordance with the plea agreement. The trial court declared Gunn to be a sexual predator pursuant to section 775.21, Florida Statutes (1999).

The standard of review of a trial court's decision on a motion to withdraw a plea is abuse of discretion. Graham v. State, 779 So.2d 604, 605 (Fla. 2d DCA 2001). In order to withdraw a guilty plea before sentencing, the defendant has the burden to show good and sufficient cause to support the withdrawal. See Fla. R.Crim. P. 3.170(f); Caddo v. State, 806 So.2d 520, 521 (Fla. 2d DCA 2001).

The designation of a person as a sexual offender or predator is a collateral consequence of a guilty plea. State v. Partlow, 840 So.2d 1040 (Fla.2003); Collie v. State, 710 So.2d 1000, 1008 (Fla. 2d DCA 1998). The failure of the trial court or counsel to advise the defendant of a collateral consequence does not render the plea involuntary and does not provide a basis on which to withdraw the plea. Watrous v. State, 793 So.2d 6, 10 (Fla. 2d DCA 2001). However, affirmative misadvice about a collateral consequence of a plea provides a basis on which to withdraw the plea. See Walkup v. State, 822 So.2d 524, 525 (Fla. 2d DCA 2002); Roberti v. State, 782 So.2d 919, 920 (Fla. 2d DCA 2001). Because Gunn's claim concerning defense counsel's alleged affirmative misadvice was not addressed by the trial court, reversal is required for an evidentiary hearing. See Ayers v. State, 831 So.2d 1260 (Fla. 2d DCA 2002); Snodgrass v. State, 837 So.2d 507 (Fla. 4th DCA 2003).

Gunn also asserts that when he raised the issue of withdrawing his plea, defense counsel took an adversarial position by refuting Gunn's claim regarding the videotape. Gunn argues that he should have been provided with conflict-free counsel to represent him on his motion to withdraw plea. We agree. Once a conflict becomes apparent between the defendant and defense counsel during a hearing on the defendant's motion to withdraw plea, the defendant is without representation and is entitled to the appointment of conflict-free counsel. See Smith v. State, 835 So.2d 1259 (Fla. 2d DCA 2003); see also Padgett v. State, 743 So.2d 70, 73 (Fla. 4th DCA 1999).

Accordingly, we reverse the judgment and sentences and remand with instructions that the trial court appoint conflict-free counsel for the purpose of an evidentiary hearing on Gunn's motion to withdraw his plea.

Reversed and remanded.

NORTHCUTT and SALCINES, JJ., Concur.