               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT



MELVIN BENJAMIN,                             )
                                             )
             Appellant,                      )
                                             )
v.                                           )         Case No. 2D16-5289
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed November 29, 2017.

Appeal from the Circuit Court for Pinellas
County; Chris Helinger, Judge.

Howard L. Dimmig, II, Public Defender,
and Richard J. Sanders, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Katherine Coombs Cline,
Assistant Attorney General, Tampa, for
Appellee.


BLACK, Judge.

             Melvin Benjamin challenges his convictions and sentences for

manslaughter and felonious possession of a firearm. Benjamin's sole argument is that

the trial court erred in denying his presentence motion to withdraw plea without
sufficient inquiry or conducting an evidentiary hearing. We reverse Benjamin's

sentences and remand for further proceedings consistent with this opinion.

              Benjamin was initially charged with second-degree murder and felonious

possession of a firearm. The murder charge was a life felony, and Benjamin's lowest

permissible guidelines sentence was forty-five years in prison. In exchange for a guilty

plea, the State amended the information to charge manslaughter and felonious

possession of a firearm and agreed to a twenty-five-year prison sentence on the

manslaughter conviction and fifteen years' concurrent on the possession conviction,

with the latter carrying a ten-year minimum mandatory term. The court accepted

Benjamin's plea, and his sentencing was set off for two weeks in order to have the

victim's family present.

              At the beginning of the sentencing hearing, counsel stated, "Mr. Benjamin

indicates this morning that he is wishing to withdraw his plea." When asked for a

reason, counsel responded:

              I think buyer's remorse. I don't know. That [twenty-five]-year
              sentence would be essentially a life sentence which,
              obviously, we have discussed previously. And that he
              doesn't have his discovery which—he doesn't have his
              discovery. I don't take (unintelligible) discovery to them at
              the jail. We've reviewed discovery, reviewed the
              depositions, how those went, on a number of occasions.

The court then advised Benjamin that if he wanted to file a written motion he could do

so but that the oral motion was denied. The court proceeded with sentencing.

              Florida Rule of Criminal Procedure 3.170(f) provides that "[t]he court may

in its discretion, and shall on good cause, at any time before a sentence, permit a plea

of guilty or no contest to be withdrawn." "When a defendant files a motion to withdraw a




                                           -2-
plea before sentencing under [rule] 3.170(f), the trial court must either deny the motion

for facial insufficiency or grant an evidentiary hearing to develop the facts surrounding

the entry of the plea." Lee v. State, 875 So. 2d 765, 766 (Fla. 2d DCA 2004).

              The trial court made no inquiry as to the potential for conflict where

counsel remarked that Benjamin had "buyer's remorse." See Grainger v. State, 906 So.

2d 380, 382 (Fla. 2d DCA 2005) ("[Counsel's] 'buyer's remorse' comment, which was

made prior to Mr. Grainger being brought into the courtroom, was adverse to his client's

interests and demonstrates a failure to act in a representative capacity. . . . Counsel's

failure to act in a representative capacity for Grainger laid the groundwork for the third

error which occurred when the trial court proceeded to entertain the motion on its merits

without providing conflict-free counsel to Grainger."), disapproved on other grounds by

Sheppard v. State, 17 So. 3d 275, 286-87 (Fla. 2009); Jones v. State, 74 So. 3d 118,

121 (Fla. 1st DCA 2011) ("Once [counsel] told the trial court that he did not believe Mr.

Jones had (left to his own devices, without the assistance of counsel) stated a legally

sufficient basis for withdrawing his plea, the relationship between Mr. Jones and

[counsel] had plainly become adversarial."); cf. Clark v. State, 112 So. 3d 680, 681 (Fla.

4th DCA 2013) ("The [pro se] motion to withdraw for a change of heart and profession of

innocence was legally insufficient to show good cause for withdrawal."). Further,

"[e]ven if [counsel was] unpersuaded that the reasons alleged as a basis for withdrawal

rose to the level of good cause, requiring the court to allow withdrawal, it is not apparent

why [counsel] chose not to argue that the trial court should exercise its discretion" to

permit her client to withdraw his plea. See Jones, 74 So. 3d at 121.




                                            -3-
              The trial court's failure to inquire is also troubling given the second basis

upon which Benjamin sought to withdraw his plea: that Benjamin did not have his

discovery. Without seeking elaboration on why the discovery might support withdrawal

of Benjamin's plea, the court simply denied the motion. Cf. Shores v. State, 152 So. 3d

93, 94 (Fla. 5th DCA 2014) (concluding that the denial of the motion to withdraw plea

based on defendant not having read his discovery was not an abuse of discretion where

"the denial was based on a finding that a defendant's failure to read discovery until after

the entry of a plea does not constitute good cause under [r]ule 3.170(f)"). Benjamin

should have been given the opportunity to present argument and otherwise be heard on

the motion to withdraw his guilty pleas. See Morales v. State, 973 So. 2d 679, 681 (Fla.

2d DCA 2008); see also Lehmkuhle v. State, 20 So. 3d 971, 974 (Fla. 2d DCA 2009)

("[T]he trial court here should have given Lehmkuhle an opportunity to be heard before

ruling on his motion.").

              Accordingly, we reverse Benjamin's sentences and remand for the trial

court to conduct a hearing on Benjamin's motion to withdraw plea.

              Reversed and remanded.

CASANUEVA and BADALAMENTI, JJ., Concur.




                                            -4-
