         DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT
                                 July Term 2014

                           LISTON T. GUMBS, JR.,
                                 Appellant,

                                        v.

                            STATE OF FLORIDA,
                                 Appellee.

                                 No. 4D12-518

                               [August 13, 2014]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Usan, Judge; L.T. Case No. 09-15310
CF10A.

    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, West Palm Beach, and Liston T. Gumbs, Jr., Okeechobee, pro
se.

  Pamela Jo Bondi, Attorney General, Tallahassee, George Francis and
Monique Rolla, Assistant Attorneys General, West Palm Beach, for
appellee.

GERBER, J.

    The defendant appeals the circuit court’s order summarily denying his
motion to withdraw his plea to attempted first-degree murder with a
firearm. According to the defendant: (1) his motion to withdraw plea
was facially sufficient because it alleged that defense counsel misadvised
him that if he proceeded to trial and was found guilty, the court was
required to sentence him to life in prison; (2) he is entitled to an
evidentiary hearing on his motion to withdraw plea because the record
does not conclusively refute his allegations; and (3) he is entitled to a
Sheppard1 hearing to determine whether he should receive conflict-free
counsel for the evidentiary hearing. We agree with the defendant’s
position in all three respects and reverse.


1   Sheppard v. State, 17 So. 3d 275 (Fla. 2009).
   The state’s attempted first-degree murder charge against the
defendant alleged that the defendant discharged a firearm and inflicted
great bodily harm on the victim. Therefore, if convicted, the defendant
faced a mandatory minimum sentence of twenty-five years in prison and
a maximum sentence of life in prison. See § 775.087(2)(a)3., Fla. Stat.
(2009) (“Any person who is convicted of a felony or an attempt to commit
a felony listed in sub-subparagraphs (a)1.a.-q., regardless of whether the
use of a weapon is an element of the felony, and during the course of the
commission of the felony such person discharged a firearm or destructive
device as defined in s. 790.001 and, as the result of the discharge, death
or great bodily harm was inflicted upon any person, the convicted person
shall be sentenced to a minimum term of imprisonment of not less than
25 years and not more than a term of imprisonment of life in prison.”).

   On the day that the defendant’s trial was to begin, the state, on the
record, offered to enter into a plea agreement with the defendant. Under
the state’s offer, the defendant would: (1) plead no contest to the crime
as charged; and (2) waive his right to appeal the court’s earlier order
denying his motion to suppress his statement to the police. In exchange,
the state would recommend that the court sentence the defendant to the
mandatory minimum term of twenty-five years in prison.

   A brief recess then occurred. The record suggests that during the
recess, defense counsel presented the defendant with a written plea form.
On the plea form, the defendant placed his initials next to the following
pertinent statements:

   •   “I am pleading guilty to the charge of Att. 1st Deg Murder (F1).”

   •   “I understand that the maximum possible penalty provided by
       law is Life (under 10/20/Life).”

   •   “The minimum penalty is 96 mths SP.”

   •   “My guideline recommended range is 96 mths—LIFE.”

   •   “And my guideline permitted range is: _________.”

   •   “I understand that that if the Court accepts my plea to the
       charge(s) listed above, my sentence will be 25 years State prison
       w/ 25 year min/man w/ 727 days credit.”

   •   “Other than the proposed sentence set forth above, no one has
       made any promises or guarantees to me nor has anyone

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       threatened me or in any way forced me to enter this plea; I am
       doing this freely and voluntarily[.]”;

       ....

   •   “I have not been threatened or coerced into this plea, and have
       not been promised any reward or favor for giving up my rights
       by anyone.”

  After the recess, defense counsel requested an opportunity to “state for
the record why we are choosing to take a plea.” The court granted the
request. Defense counsel stated, in pertinent part:

           I do believe that his best interests are to take the
       negotiated resolution from the State because I believe that
       the situation that may result at trial would not be as favorable
       to him especially given the limited options the Court would
       have on sentencing, given that the lesser included offenses
       would all lead to the main minimum mandatory sentence of
       life.

          So that being said . . . all I am expressing to the Court is
       that [the defendant] has agreed to take this . . . plea offer
       and I have given him whatever advice I can throughout this
       time based on that.

(emphasis added). Even though defense counsel made the emphasized
incorrect statement as to the minimum mandatory sentence, the record
does not indicate that the state or the court corrected defense counsel.

   Instead, the court proceeded to conduct its plea colloquy with the
defendant. The colloquy’s pertinent portions are as follows:

       Court: You are charged with one count of attempted
       murder in the first degree, that is punishable by life. You
       understand what you’re facing here?

       Defendant:    Yes, sir.

       ....

       Court: My understanding is it is going to be an
       adjudication, 25 years in [a] Florida State Prison with 25


                                      3
year minimum mandatory, credit for 727 days he has
already served. Is that your understanding, sir?

Defendant:    Yes, sir.

Court: Has anyone promised you anything other than what
I just announced right here in open court?

Defendant:    No.

Court: Anyone forcing you, threatening you or coercing you
into taking this plea?

[Defendant does not respond.]

Court:   You know what, I am not accepting the plea.

Defendant: No, no, I was thinking of my family that’s all,
nobody ain’t force me, nobody ain’t force me. Nobody ain’t
forced me.

Defense Counsel: The frustration is he is trying to balance
out what his family’s requests are versus perhaps what he
may have individually wanted to do.

Court: Sir, I got 50 jurors sitting downstairs if you want to
have a trial.

Defendant: Yes, I know, I am not trying to hold you up,
your Honor, I’m sorry.

Court:   I’m ready.

Defendant:    Ain’t nobody has forced me to do nothing, I’m
free will.

Court: All right, no one is forcing you, threatening you or
coercing you into changing your plea?

Defendant:    No, sir.

....



                                4
     Court: I’m holding in my hand a form entitled Plea of . . .
     No Contest to Criminal Charges in Circuit Court. Do you
     recognize it?

     Defendant:     Yes, sir, I did.

     Court:   Are those your initials in front of each paragraph?

     Defendant:     Yes.

     Court:   Signature on pages 2 and 3?

     Defendant:     Yes, sir.

     Court: Did you have an opportunity to read over that form
     in its entirety prior to initialing and signing it?

     Defendant:     Yes.

     ....

     Court:   Do you have any questions about what is on the
     form?

     Defendant: No.

(emphasis added).

   The defendant proceeded to plead no contest to the charge. The court
accepted the plea, found that the defendant entered the plea knowingly,
intelligently, and voluntarily, and found that the defendant understood
the nature of the charge against him and the consequences of his plea.
The court then sentenced the defendant to the mandatory minimum
sentence of twenty-five years in prison with credit for 727 days of time
served.

   Ten days after the plea and sentencing hearing, the defendant served
a pro se motion to withdraw plea. In the motion, the defendant argued,
in pertinent part, as follows:

     Defendant[’]s counsel told his client that if he did not
     [accept] the plea of 25 years[,] the Honorable Judge would
     call [trial] that afternoon and he would be found [guilty] and
     be sentenced to life in Florida prison. Going against what

                                       5
      the defendant wishe[d] to go to [trial], his counsel forced him
      to [accept] the plea [agreement]. If the court would have
      taken more time with the defendant to make sure taking a
      25 year plea is what he really wanted[,] and not being
      [threatened] and forced into taking the plea[,] the defendant
      would have proceeded to [trial] like he wanted to do.

      ....

      Upon arriving [in prison], the defendant learned that his
      counsel had[,] along with the court[,] misadvised the
      defendant of what he would [receive] if he proceeded to [trial].
      . . . The defendant did not understand what was happening
      and did not know what he was doing by listening to the
      [advice] of his counsel.

(emphasis added).

    The state filed a response to the motion. In the response, the state
argued only “that the court was thorough in its colloquy and explanation
of the maximum penalties involved in this plea.” (emphasis added).

    The circuit court entered an order denying the defendant’s motion
without a hearing. Regarding the defendant’s argument that his counsel
“forced” him into accepting the plea offer, the court found that the
defendant’s plea form and the plea colloquy transcript, both attached to
the order, conclusively refuted the defendant’s argument. The court
noted from the plea form the defendant’s agreement that “[o]ther than
the proposed sentence set forth above, no one has made any promises or
guarantees to me nor has anyone threatened me or in any way forced me
to enter this plea; I am doing this freely and voluntarily.” The court also
noted certain portions of the plea colloquy transcript (quoted above) in
which the defendant acknowledged his understanding that the court
would sentence him to prison for the minimum mandatory twenty-five
years term of imprisonment, and that no one had promised him
anything, forced him, threatened him, or coerced him into taking the
plea.   However, nowhere in the order did the court address the
defendant’s allegation that his counsel “misadvised [him] of what he
would [receive] if he proceeded to [trial].”

   This appeal followed. The defendant argues that the circuit court
erred in summarily denying his motion to withdraw plea. According to
the defendant: (1) his motion to withdraw plea was facially sufficient
because it alleged that defense counsel misadvised him that if he

                                     6
proceeded to trial and was found guilty, the court was required to
sentence him to life in prison; (2) he is entitled to an evidentiary hearing
on his motion to withdraw plea because the record does not conclusively
refute his allegations; and (3) he is entitled to a Sheppard hearing to
determine whether he should receive conflict-free counsel for the
evidentiary hearing.

    We review the circuit court’s order for an abuse of discretion. See
Hamil v. State, 106 So. 3d 495, 497 (Fla. 4th DCA 2013) (“We review a
trial court’s denial of a motion to withdraw a plea after sentencing for an
abuse of discretion.”).

   We agree with the defendant’s position in all three respects.

    First, we conclude that the defendant’s motion to withdraw plea was
facially sufficient.   That is, if defense counsel indeed advised the
defendant that the court was required to sentence him to life in prison if
he proceeded to trial and was found guilty, then defense counsel
misadvised the defendant. See § 775.087(2)(a)3., Fla. Stat. (2009) (“[T]he
convicted person shall be sentenced to a minimum term of imprisonment
of not less than 25 years and not more than a term of imprisonment of
life in prison.”); Woodly v. State, 937 So. 2d 193, 197 (Fla. 4th DCA 2006)
(“The allegation that counsel misadvised appellant that he would receive
a life sentence if convicted is cognizable under rule 3.170(l).”).

    Second, we conclude that the defendant is entitled to an evidentiary
hearing on his motion to withdraw plea because the record does not
conclusively refute his allegations. See id. at 196 (“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.”). The record indicates that, before the court began the
plea colloquy, defense counsel explained that the reason why the
defendant was taking the plea was because a guilty verdict “would not be
as favorable to him especially given the limited options the Court would
have on sentencing, given that the lesser included offenses would all lead
to the main minimum mandatory sentence of life.” (emphasis added).
Even though defense counsel made the emphasized incorrect statement
as to the minimum mandatory sentence, the record does not indicate
that the state or the court corrected defense counsel. Moreover, during
the plea colloquy, the court never informed the defendant that if he
proceeded to trial and was found guilty, then the court could have
sentenced him anywhere from the mandatory minimum term of twenty-
five years in prison to the maximum term of life in prison. Instead, the
court told the defendant only that the charge of attempted murder in the

                                     7
first degree was “punishable by life,” and that he was entering his plea to
receive “25 years in [a] Florida State Prison with 25 year minimum
mandatory, credit for 727 days he has already served.” Thus, given the
foregoing record, the defendant is entitled to an evidentiary hearing on
his motion to withdraw plea.

   Third, we conclude that the defendant is entitled to a Sheppard
hearing to determine whether he should receive conflict-free counsel for
the evidentiary hearing. In Sheppard, our 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.” 17 So. 3d at 286-87. Under
this procedure:

      [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.

Id. at 287.

    Our conclusions in this case are consistent with our recent opinion in
Thompkins v. State, 120 So. 3d 66 (Fla. 4th DCA 2013). In Thompkins,
the state charged the defendant with, among other things, three counts
of first-degree murder with a firearm. The defendant later pled guilty to
second-degree murder with a firearm. The defendant then filed a Florida
Rule of Criminal Procedure 3.850 motion, in which he claimed, among
other things, affirmative misadvice of counsel that if he were convicted of
the first-degree murder counts as charged, the only possible sentence he
could receive would be the death penalty. The circuit court summarily
denied this claim based on the plea colloquy.

   We reversed, reasoning: “[W]e find nothing in that colloquy which
actually refuted this claim. The fact that the trial court advised [the
defendant] that if convicted, he faced the possibility of the death penalty
did not overcome his claim that his counsel affirmatively misadvised him
that this was the only sentencing possibility if he were convicted.” Id. at
67 (emphasis added). We thus remanded for either an evidentiary


                                    8
hearing or attachment of portions of the record refuting the claim other
than the portions of record already incorporated by the trial court. Id.

    Although Thompkins involved a rule 3.850 motion while this case
involves a motion to withdraw plea, the underlying legal basis for reversal
to conduct an evidentiary hearing remains the same in both cases. In
both cases, the record did not conclusively refute defense counsel’s
alleged misadvice that if the defendant proceeded to trial and was found
guilty, the court was required to sentence him to the maximum penalty.
See also Boule v. State, 884 So. 2d 1023, 1025 (Fla. 2d DCA 2004)
(“[N]othing in the transcript of the plea hearing or otherwise contained in
the record on appeal conclusively refutes [the defendant’s] claim that his
attorney told him he would definitely receive a life sentence if he rejected
the plea offer and went to trial. Although the sentencing scoresheet
reflects that [the defendant] was exposed to the possibility of a life
sentence, the record does not reflect that such a sentence was a
certainty. . . . Accordingly, we reverse the denial of [the defendant’s]
motion to withdraw plea and remand for the trial court to conduct an
evidentiary hearing to resolve the motion.”) (footnote omitted).

   In reaching today’s opinion, we distinguish two of our prior opinions,
Jones v. State, 680 So. 2d 585 (Fla. 4th DCA 1996), and Woodly v. State,
937 So. 2d 193 (Fla. 4th DCA 2006).

   In Jones, a defendant who qualified for habitual offender sentencing
entered a plea bargain to a term of years sentence which did not
contemplate any enhancement. During the plea conference, the court
told the defendant that if it declared him to be a habitual offender, he
“could be sentenced to life.” The defendant stated he understood and did
not have any questions about the sentence which the court could
impose. The defendant later filed a rule 3.850 motion alleging his lawyer
misadvised him, before entering the plea, that if found guilty as an
habitual offender “you’re never going to get out of prison because the
judge is obligated to sentence you to life.” The circuit court summarily
denied the motion.

   We affirmed. 680 So. 2d at 586-87. We concluded the defendant’s
acknowledgement that he understood the sentence and his failure to
raise any questions refuted the defendant’s claim that his plea was
involuntary. Id. at 587. In a partial dissent, Judge Stevenson argued
that, as he understood the claim, the defendant was alleging “defense
counsel advised him that if he proceeded to trial and was then found
guilty as [a] habitual offender, the judge would be obligated to sentence
him to life imprisonment.” Id. at 588 (Stevenson, J., dissenting in part).

                                     9
According to Judge Stevenson, “[t]he trial judge’s plea colloquy would not
necessarily have cleared up an erroneous belief that the maximum
sentence after a trial could be different; neither would the plea colloquy
necessarily have prompted an additional inquiry from [the defendant]
concerning the matter since it was not inconsistent with the advice he
had allegedly been given.” Id.

    The instant case presents the scenario which Judge Stevenson
contemplated. Here, the defendant has alleged that defense counsel
misadvised him that, if he proceeded to trial and was found guilty, the
judge would be obligated to sentence him to life imprisonment. In fact,
defense counsel said on the record that the reason why the defendant
was taking the plea was because a guilty verdict “would not be as
favorable to him especially given the limited options the Court would have
on sentencing, given that the lesser included offenses would all lead to the
main minimum mandatory sentence of life.” (emphasis added). Even
though defense counsel made the emphasized incorrect statement as to
the minimum mandatory sentence, the record does not indicate that the
state or the court corrected defense counsel. Moreover, during the plea
colloquy, the court never informed the defendant that if he proceeded to
trial and was found guilty, then the court could have sentenced him
anywhere from the mandatory minimum term of twenty-five years in
prison to the maximum term of life in prison. Instead, the court merely
told the defendant that the charge of attempted murder in the first
degree was “punishable by life,” and that he was entering his plea to
receive “25 years in [a] Florida state prison with 25 year minimum
mandatory, credit for 727 days he has already served.” Thus, to
paraphrase Judge Stevenson, the court’s plea colloquy here would not
necessarily have cleared up an erroneous belief that the maximum
sentence after a trial could be different; nor would the plea colloquy
necessarily have prompted an additional inquiry from the defendant
concerning the matter since it was not inconsistent with the advice he
had allegedly been given and what was said on the record.

    In Woodly, the state charged the defendant with robbery with a
firearm, armed kidnapping, and attempted murder. On the morning of
trial, the state, on the record, offered the defendant a plea deal of
fourteen years in prison with a ten-year mandatory minimum sentence.
The court asked what the potential penalties were, and the state
informed that the defendant was “looking at life because of the robbery
firearm as a principal.” However, this was not a mandatory life sentence.
The court then confirmed that the defendant’s “potential penalty would
be up to life discretionary with a ten year minimum mandatory” under
the 10-20-Life law. The defendant said he would accept the state’s offer.

                                    10
During the plea colloquy, the court asked the defendant, “[H]as anyone,
including your attorney, told you anything different than what I’ve told
you here in open court?” The defendant said “no.” Shortly after the
sentencing, the defendant moved to withdraw his plea, alleging, among
other things, that his attorney misadvised him “that if he did not take the
negotiated plea, the trial judge would impose a life sentence after trial if
he were convicted.” The court summarily denied the motion without
prejudice to the defendant filing a rule 3.850 motion.

   We affirmed, concluding that the record conclusively refuted the
defendant’s allegations:

      In [the defendant’s] presence, the prosecutor stated that the
      potential penalty was up to life imprisonment on each count.
      The court confirmed that the life sentence was discretionary
      and not mandatory. Further, through its questioning, the
      trial court confirmed that no one, including [the defendant’s]
      attorney, had told [the defendant] anything different than
      what the court was informing him about his sentence. The
      trial court informed [the defendant] that if he proceeded to
      trial he was facing up to life imprisonment with a ten-year
      minimum mandatory on each count in the information
      pursuant to the 10-20-Life provision of the Florida Statutes.
      Based upon the transcript, [the defendant] was well aware
      that he was not facing a mandatory life sentence on the
      charges to which he pled guilty.

937 So. 2d at 197-98.

   The record in Woodly differs from the record here. Here, neither the
prosecutor nor the court stated in the defendant’s presence that the
potential penalty was up to life imprisonment on the count charged; the
court never indicated that the life sentence was discretionary and not
mandatory; and the court never confirmed that no one, including the
defendant’s attorney, told him anything different than what the court
was informing him about his sentence. Thus, based upon the transcript,
a question remains whether the defendant was aware that he was not
facing a mandatory life sentence on the charge to which he pled guilty.

   Based on the foregoing, we reverse the circuit court’s order summarily
denying the defendant’s motion to withdraw his plea. We remand for the
court to hold an evidentiary hearing on the motion. We also remand for
the court to hold a Sheppard hearing to determine whether the defendant
should receive conflict-free counsel for the evidentiary hearing.

                                    11
   Reversed and remanded.

STEVENSON and CIKLIN, JJ., concur.

                          *          *     *

   Not final until disposition of timely filed motion for rehearing.




                                     12
