RICKY LEE GRAVES JR v. STATE OF FLORIDA (2020)

ON CONCESSION OF ERROR

After sentencing and while represented by counsel, the defendant filed a timely pro se “Motion to Withdraw Open Court Plea” and “Motion for Appointment of Counsel During Motion to Withdraw Open Court Plea.” He claimed, inter alia, that his attorney generally misadvised him, including a failure to advise him of the dangers and consequences of entering an open plea. At a hearing, the court allowed defense counsel to withdraw and appointed the public defender for purposes of the defendant's appeal. The court struck the defendant's motion to withdraw his plea on the grounds that he was represented by counsel. Because this was error, the state's concession of error is well taken.

When a defendant files a pro se motion to withdraw plea alleging that his attorney misadvised him, misrepresented the terms of the plea, or coerced him into entering a plea, an adversarial relationship exists and the trial court should not strike the pleading as a nullity. “Rather, the 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.” Sheppard v. State, 17 So. 3d 275, 286-87 (Fla. 2009). Based on Sheppard, we reverse and remand for the trial court to consider the defendant's motion to withdraw his plea with the assistance of conflict-free counsel.

Reversed and remanded.

Per Curiam.

Levine, C.J., Warner and Gross, JJ., concur.