FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-717

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JOSEPH WAYNE SMITH,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Escambia County.

Darlene F. Dickey, Judge. 

June 22, 2018

B.L. THOMAS, C.J.

Appellant challenges the trial court’s summary denial of his 

pro se motion to withdraw plea, arguing that, because his motion 

alleged an adversarial relationship with his counsel, he was 

entitled to appointment of conflict-free counsel. 

Facts

On January 13, 2016, Appellant was charged by information 

with Felony Petit Theft and pled nolo contendere. At his plea 

hearing on August 24, 2016, Appellant told the court that he 

understood that by pleading straight up, he did not know what 

his sentence would be. Appellant stated that he understood he 

was charged with six counts of felony theft, and he understood 

each of the charges. He understood that each case carried a 
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maximum five-year sentence and a $5,000 fine. Appellant stated 

that he agreed with the facts in each of the charges and 

understood that, based on his scoresheet, he faced a minimum of 

19 months in state prison. Appellant further stated that he 

understood that, by pleading no contest, he waived his right to a 

jury trial, the right to cross-examine witnesses, the right to 

present witnesses, and any legal defenses he may have had. 

Appellant stated that no one was forcing him to plead no contest 

and that he was not under the influence of alcohol, drugs, or 

medication. Appellant stated that he had had time to go over the 

charges with his attorney, and he was satisfied with his 

attorney’s advice and the representations his attorney had made 

to him. 

The court accepted Appellant’s plea, finding that in each 

case, each count was knowingly and voluntarily entered, and 

there was a factual basis for each. The court adjudicated 

Appellant guilty and sentenced him to serve 36 months in state 

prison, with credit for 212 days of time served. 

On December 21, 2016, Appellant filed a pro se motion to 

withdraw plea, in which he alleged that he “scored out to 

19.3 months,” and his attorney did not inform him that he would 

receive a three-year prison sentence. Appellant alleged that he 

pled out based on his attorney’s advice, but he wasn’t advised as 

to “what cost or risk that [he] would be facing.” 

The trial court entered an order denying Appellant’s motion 

to withdraw plea, stating that, despite Appellant’s allegations 

that he did not know he would be given a three-year prison 

sentence, Appellant’s plea was entered freely, voluntarily, and 

intelligently given.

Analysis

The standard of review of a trial court’s denial of a motion to 

withdraw plea is abuse of discretion. Woodly v. State, 937 So. 2d 

193, 196 (Fla. 4th DCA 2006). Where a defendant files a facially 

sufficient motion to withdraw his plea, he is entitled to an 

evidentiary hearing on the issue unless the record conclusively 

refutes his allegations. Id. 
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A motion to withdraw a plea pursuant to rule 3.170(l) is a 

critical stage in the direct criminal proceeding at which the 

defendant is entitled to effective assistance of counsel. Flemming 

v. State, 204 So. 3d 950, 952 (Fla. 1st DCA 2016). 

“In Sheppard v. State, the Supreme Court ‘outline[d] the 

procedure trial courts should follow when a represented 

defendant files a pro se rule 3.170(l) motion based on allegations 

giving rise to an adversarial relationship such as counsel's 

misadvice, misrepresentation, or coercion that led to the entry of 

the plea . . . .’” Id. (quoting Sheppard, 17 So. 3d 275, 286-87 (Fla. 

2009)). The court in Sheppard held: 

[T]he trial court should hold a limited hearing at which 

the defendant, defense counsel, and the State are 

present. If it appears to the trial court that an 

adversarial relationship between counsel and the 

defendant has arisen and the defendant's allegations are 

not conclusively refuted by the record, the court should 

either permit counsel to withdraw or discharge counsel 

and appoint conflict-free counsel to represent the 

defendant. 

17 So. 3d at 287. 

Pursuant to Sheppard, “the trial court is not required to 

appoint conflict-free counsel unless both an adversary 

relationship exists and the defendant's allegations are not 

conclusively refuted by the record.” Flemming, 204 So. 3d at 952 

(emphasis in original) (quoting Nelfrard v. State, 34 So. 3d 221, 

223 (Fla. 4th DCA 2010). Thus, if a defendant’s allegations are 

conclusively refuted by the record, the trial court’s failure to hold 

the “limited hearing” required by Sheppard is harmless error, 

and the defendant is not entitled to substituted counsel. Id. 

(citing Johnson v. State, 22 So. 3d 840, 844 (Fla. 1st DCA 2009)).

In Flemming, the trial court discussed with the defendant 

the charges against him and the terms to which he would be 

sentenced; the defendant answered affirmatively when asked 

whether he understood the agreement and whether he believed it 
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was in his best interest to accept the State’s offer. 204 So. 3d at 

952. The defendant also signed a plea form setting forth the 

agreement as explained by his counsel and the trial court. Id. 

Based on those facts, this court determined that the record 

conclusively refuted the appellant’s allegation that he was 

misadvised that he would receive a lesser sentence. Id.

“[H]aving established that [the appellant’s] allegations were 

conclusively refuted by the record, it follows that [the appellant] 

was not entitled to an evidentiary hearing,” and the trial court 

did not err in summarily denying his motion to withdraw plea. 

Id. at 953. 

Here, nothing in the record shows that Appellant’s counsel 

withdrew before the court considered his motion, “so he was not 

‘completely denied representation and assistance with regard to 

his motion to withdraw plea.’” Id. at 952 (quoting Tipler, 149 

So. 3d 1192, 1193 (Fla. 1st DCA 2014)). As in Flemming, the 

court here conducted an extensive colloquy, where Appellant 

stated that he understood that he did not know what his sentence 

would be, that the charges against him carried a maximum 

sentence of five years, and, based his scoresheet, he faced a 

minimum of 19 months in prison. Therefore, Appellant’s 

allegations that he was misadvised that he might receive a threeyear prison sentence are conclusively refuted by the record. 

Flemming, 204 So. 3d at 952. Thus, Appellant was not entitled to 

an evidentiary hearing on his motion to withdraw plea and was 

not entitled to substitute counsel, and the trial court therefore 

did not abuse its discretion in summarily denying Appellant’s 

motion. 

AFFIRMED.

WOLF and RAY, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Andy Thomas, Public Defender, Justin Foster Karpf, Assistant 

Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Robert Quentin Humphrey, 

Assistant Attorney General, Tallahassee, for Appellee.