Why you can't and shouldn't go it alone: Undoing coerced pleas and Correcting Court Error
Many times clients will come to me desperate that they made a mistake by taking the first plea offer made to them. They reveal feeling pressured by the Judge to plea no contest at arraignment, or worse, a first appearance hearing. What follows are ways to undo this damage.
Withdrawing an Uncounseled PleaIn the instance where an individual entered a plea without counsel, clients need to retain an aggressive advocate to file a Motion to Withdraw their Plea, immediately. This Motion must be done within 60 days of the date they were sentenced. Do not wait. Get the Motion filed and set it for hearing.
Waiving this Motion because of delay can be fatal to correcting the court's error in accepting the plea.
These uncounseled pleas should be vacated at the hearing. Often, the plea colloquoy is flawed and inadequate. Defendant's are waiving rights with essentially no warning. They are basically asked if they are awake, and have any education. This is error and will be reversed on appeal.
If the court refuses to vacate the plea, then I have repeatedly and successfully pursued appeals of lower court error in denying the Motion to Withdraw a Defendant's plea.
This has repeatedly occurred in Central Florida.
Trials courts routinely fail to conduct an adequate inquiry as required by Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L.Ed. 2d 562 (1975). A defendant in a criminal case has the right to self-representation. However, the trial court must make an inquiry into the defendant's capacity to make a *knowing and intelligent* waiver of their right to counsel and *shall advise the defendant of the dangers and disadvantages of self-representation.* See Florida Rule of Criminal Procedure 3.111(d)(2). Following the inquiry, the trial court must make a finding as to whether the waiver of counsel is knowing, intelligent and voluntary. McGee v. State, 983 So.2d 1212, 1214 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1620a].
Trial courts have failed to insure that defendants are aware of the dangers and disadvantages of self-representation. Although there are no magic words that are necessary when conducting a Faretta inquiry, the failure to inform the defendants of the dangers of self-representation is fatal. Vega v. State, 57 So.3d 259 (Fla. 5th DCA 2011) [36 Fla. L. Weekly D628a].
Waiving your right to Counsel prior to sentencing? There's still hope.Furthermore, if a defendant waives counsel at any stage of the proceedings, the trial court must renew the offer of assistance of counsel at each subsequent stage of the proceedings. See Florida Rule of Criminal Procedure 3.111(d)(5). Even if there is no temporal break in the proceeding, sentencing is a separate critical stage and the trial court must renew the offer of counsel before sentencing. Travis v. State, 969 So.2d 532 (Fla. 1st DCA 2007) [32 Fla. L. Weekly D2802b].