         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-717
                 _____________________________

JOSEPH WAYNE SMITH,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                    ___________________________

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
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.

                                 2
     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

                                 3
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 three-
year 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.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


                                4
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.




                             5
