CATO v. STATE (2021)

Christopher Cato appeals from a denial of his motion to withdraw plea. He raises two issues: (1) whether the trial court erred in denying the motion without holding an evidentiary hearing; and (2) whether the trial court erred in failing to enter a written finding of competency. We affirm.

Cato was arrested and charged with burglary of a dwelling. He submitted to a mental health examination to determine whether he was competent to proceed. Based on the parties’ stipulation and its own review of the competency report, the court found at a hearing that Cato was competent to proceed, but it did not enter a written order finding competency. Cato entered a negotiated guilty plea and affirmed that his plea was voluntary. He was adjudicated guilty and sentenced to fifteen years in prison as a prison releasee reoffender. At the plea hearing, the State said that the victim, Anthony Bell, was satisfied with the disposition of the case. Bell had been served with a subpoena and Cato's attorney had filed a notice of taking Bell's deposition, but the record does not show whether Bell had actually been deposed. Cato affirmed under oath that he had had enough time to speak to his attorney, that he was satisfied with his attorney's advice, and that he understood his rights not to plead guilty and to go to trial, including his right to cross-examine State witnesses and call witnesses on his own behalf. The court found that Cato's plea was freely and voluntarily entered with a full understanding of the nature and consequences of the plea.

After sentencing, Cato moved pro se to withdraw his plea. In his motion, he alleged the following: Bell had informed the police that he did not want to pursue charges against Cato. Cato had instructed his attorney to contact Bell, a close friend Cato had known since childhood, and Bell would tell the attorney that he did not wish to press charges. The attorney had not contacted Bell. While out on bond, Cato had heard from his mother that Bell did not want to press charges—information that never made it to attorneys. The prosecutor had falsely told the judge that Bell was satisfied with the sentence. Bell was willing to testify that he had never spoken to the prosecutor and that if he had, he would have requested that the prosecutor drop the charges; he also would testify that he did not want Cato to spend any time in prison. A manifest injustice had occurred in that Cato's plea was involuntary because he would not have entered it had his attorney contacted Bell and had Bell testify. Bell would submit an affidavit in support of the motion.¹

The court denied Cato's motion to withdraw plea, finding that there had been no manifest injustice and that the record refuted Cato's allegations.

Regarding the plea withdrawal, we review for abuse of discretion. See Smith v. State, 249 So. 3d 1284, 1286 (Fla. 1st DCA 2018). A defendant may move to withdraw an involuntary plea within thirty days after sentencing. Fla. R. Crim. P. 3.170(l); Fla. R. App. P. 9.140(b)(2)(A)(ii)c. After a sentence is imposed, the defendant has the burden to prove that a manifest injustice has occurred. See LeDuc v. State, 415 So. 2d 721, 722 (Fla. 1982). The trial court may rely on the defendant's sworn testimony from the plea colloquy; allegations that contradict that testimony should not be entertained. See Johnson v. State, 22 So. 3d 840, 844 (Fla. 1st DCA 2009).

In this case, the court did not err in denying Cato's motion because the record refutes Cato's allegations. Cato apparently became aware of Bell's alleged position before the plea colloquy. At the colloquy, however, he testified under oath that he had had time to speak with his attorney, that he was satisfied with his attorney's advice, and that he understood that he had the option to reject the plea, go to trial, and call witnesses. This testimony refutes Cato's claim that he would not have entered the plea if his attorney had contacted Bell and had Bell testify; if he had wanted Bell to testify, he would have been unsatisfied with his attorney's advice and would have exercised his option to reject the plea and go to trial. We recognize, however, that this testimony would be insufficient to refute a later claim of involuntariness if Cato had not known Bell's alleged position at the time of the plea colloquy. A defendant's statement that he is satisfied with his attorney's advice and wishes to plead does not necessarily disprove a claim that a plea was involuntary if the defendant was unaware of facts or evidence underlying a possible defense at the time that he makes the statement. But that is not the case here. Because Cato knew of Bell's alleged position when he testified that he was satisfied and wished to proceed, his testimony refutes that his plea was involuntary.

As for Cato's claim regarding the court's failure to enter a written competency order, this issue is controlled by the recent decision of the Florida Supreme Court in State v. Dortch, 317 So. 3d 1074 (Fla. May 20, 2021). Under Dortch, an allegation that the trial court failed to enter a written competency order, where the defendant pleaded guilty, is a claim that the plea was involuntary. Id. at 1083; see also Fla. R. App. P. 9.140(b)(2)(A)(ii)(c.). Under these standards, Cato is not entitled to relief on appeal on the basis of the court's failure to enter a written competency order.²

Because the trial court did not err in denying Cato's motion to withdraw plea without holding an evidentiary hearing and because failing to enter a written finding of competency was not reversible error in this case, we affirm.

FOOTNOTES

1.   The record does not reflect that Bell ever submitted a supporting affidavit.

2.   Even if Dortch did not apply to this case, we would not reverse. It is true that the usual remedy for a court's failure to produce a written order finding competency is to remand for a written order. See McCray v. State, 265 So. 3d 659, 662 (Fla. 1st DCA 2019). But failure to enter a written competency order is not fundamental error if the trial court has made an oral finding of competency that is fully supported by the record. See Santiago-Gonzalez v. State, 301 So. 3d 157, 175 (Fla. 2020). Here, the court made an oral finding of competency supported by the record. As such, there was no fundamental error and we would not remand even if Dortch did not foreclose relief.

Winokur, J.

Ray, C.J. and Bilbrey, J., concur.