         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                               NOT FINAL UNTIL TIME EXPIRES TO
                                               FILE MOTION FOR REHEARING AND
                                               DISPOSITION THEREOF IF FILED


TIMOTHY HAMPTON,

             Appellant,

 v.                                                   Case No. 5D15-2745

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed April 13, 2017

3.850 Appeal from the Circuit
Court for Seminole County,
Donna L. McIntosh, Judge.

Timothy Hampton, Perry, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Robin A. Compton,
Assistant Attorney General, Daytona
Beach, for Appellee.

                                      EN BANC

EDWARDS, J.

      Timothy Hampton (“Appellant”) appeals the denial of his Florida Rule of Criminal

Procedure 3.850 motion for postconviction relief regarding his pleas of no contest,

convictions, and sentences for several drug felonies, evidence tampering, and resisting

a law enforcement officer. Appellant set forth three separate grounds in his motion as

bases for his claims of ineffective assistance of counsel and involuntary pleas. The
postconviction court summarily denied Grounds One and Two. After an evidentiary

hearing on Ground Three, the court denied Appellant’s motion in its entirety. We affirm

as to Grounds Two A and Three without further discussion. For the reasons discussed

below, we reverse and remand for further proceedings as to Ground One and affirm as

to Ground Two B.

            GROUND ONE: FAILURE TO CHALLENGE WIRETAP ORDER

       Appellant claims in Ground One that defense counsel was ineffective for failing to

move to quash the order that authorized a wiretap based upon an allegedly insufficient

probable cause affidavit. Appellant claims that a motion to quash the order would have

been successful and would have weakened the State’s case to such an extent that it

would have resulted in either dismissal of all charges, acquittal, or lighter sentences.

Appellant further claims that if the motion was filed and granted, he would not have

pleaded no contest.

       The postconviction court held that Appellant’s no contest plea precluded

postconviction attack on the admissibility of the evidence. However, a rule 3.850 motion

alleging that “trial counsel provided ineffective assistance by failing to file a motion to

suppress is a legally sufficient claim, which is not waived by an entry of a plea.” Spencer

v. State, 889 So. 2d 868, 870 (Fla. 2d DCA 2004) (citations omitted); see also MacKinnon

v. State, 39 So. 3d 537, 538 (Fla. 5th DCA 2010). Thus, the postconviction court erred

when it relied on legal insufficiency in summarily denying Appellant’s first ground for relief.

The record does not contain the motions to suppress or transcripts of the hearings

resolving the motions; therefore, we cannot determine whether the motions addressed

the propriety of the wiretap order. We reverse and remand with instructions for the




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postconviction court either to attach records that conclusively refute Appellant’s claims or

to conduct an evidentiary hearing on Ground One.

       GROUND TWO B: INCOMPLETE INFORMATION ON CONSEQUENCES
                OF HABITUALIZED OFFENDER SENTENCING

       In Ground Two B, Appellant alleges that his plea was involuntary because he was

not properly advised of the possible adverse consequences of being sentenced as a

habitual felony offender (“HFO”), with regard to the opportunity for early release from

prison. The postconviction court noted that, during the sentencing proceedings, Appellant

was not expressly advised about the possible effect of habitualization on early release

eligibility. The court determined, however, that Appellant received written notice of the

State’s intent to seek an HFO sentence enhancement, which advised that such a

sentence “may cause the defendant to be ineligible for certain gain time or prison

programs.” The court, therefore, summarily denied Ground Two B because Appellant did

not demonstrate prejudice.

       In Ashley v. State, 614 So. 2d 486 (Fla. 1993), the Florida Supreme Court held

that before a defendant can be properly designated as a habitual offender after the entry

of a guilty or no contest plea, “1) [t]he defendant must be given written notice of intent to

habitualize, and 2) the court must confirm that the defendant is personally aware of the

possibility and reasonable consequences of habitualization.” 614 So. 2d at 490 (footnote

omitted). The second prong, “reasonable consequences of habitualization,” includes

informing a defendant of his or her eligibility for habitualization, the maximum HFO term,

and the fact that habitualization may affect the possibility of early release. Id. at 490 n.8.

A defendant’s claim that the trial court failed to inform him of the reasonable

consequences of habitualization calls into question the voluntariness of the plea. State



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v. Thompson, 735 So. 2d 482, 484 (Fla. 1999). “[T]he issue of voluntariness may be

raised in the trial court in a motion for postconviction relief if the issue has not been

previously raised and ruled upon.” Id. at 485.

       In this case, during Appellant’s plea colloquy, the trial court went through each

count and advised Appellant of the maximum HFO enhanced sentence and related fines.

The State’s written notice of intent to seek an HFO sentence indicated that being

sentenced as an HFO could make Appellant ineligible for certain gain time or prison

programs. Appellant did not, however, receive any further explanation from his counsel

or the court regarding the effect his habitualization would have on gain time, early release,

or conditional release from prison.

       Post-Ashley legislation raised questions about whether a discussion of gain time

is still required in the plea colloquy for a defendant who may be sentenced as an HFO.

The Florida legislature has eliminated automatic grants of gain time for crimes committed

on or after January 1, 1994. Barrs v. State, 883 So. 2d 846, 846 (Fla. 1st DCA 2004).

Therefore, the First, Third, and Fourth Districts concluded that a discussion of the impact

of habitualization on gain time in the plea colloquy is no longer needed. Smith v. State,

126 So. 3d 397, 400 (Fla. 4th DCA 2013); Barrs, 883 So. 2d at 846; Ferguson v. State,

677 So. 2d 968, 968-69 (Fla. 3d DCA 1996). We agree with those courts that this

legislation resulted in “the elimination of basic gain time for all offenders [and] nullified

Ashley’s requirement to advise offenders that habitualization may affect the possibility of

early release.” Smith, 126 So. 3d at 400 (citations omitted).1




       1 Habitual felony offenders, habitual violent felony offenders, and violent career
criminals are now eligible for gain time under the sentencing provisions that apply to


                                             4
       Florida law requires that the defendant be made aware of the reasonable or direct

consequences of habitualization prior to entering a plea. Ashley, 614 So. 2d at 490; State

v. Rodriguez, 990 So. 2d 600, 603 (Fla. 3d DCA 2008).            A “direct” consequence

“represents a definite, immediate and largely automatic effect on the range of the

defendant’s punishment.” Major v. State, 814 So. 2d 424, 431 (Fla. 2002) (quoting

Zambuto v. State, 413 So. 2d 461, 462 (Fla. 4th DCA 1982)). “Neither the trial court nor

counsel is required to forewarn a defendant about every conceivable collateral

consequence of a plea to criminal charges.” Simmons v. State, 611 So. 2d 1250, 1252

(Fla. 2d DCA 1992).     “Gain time, good time, provisional credit time, and additional

mitigating credits are all collateral consequences of a guilty plea.” Rodriguez, 990 So. 2d

at 606. Thus, a plea is not rendered involuntary nor is ineffective assistance of counsel

established when the defendant is not informed of every possible ramification or limitation

concerning gain time or every possible reduction in time to be served. Henderson v.

State, 626 So. 2d 310, 311 (Fla. 3d DCA 1993); see also Cariveau v. Sec’y, Fla. Dep’t. of

Corr., No. 3:14-cv-542-J-32MCR, 2016 WL 6600955, at *5 (M.D. Fla. Nov. 8, 2016).2




habitualized offenders. See § 775.084(4)(k)1., Fla. Stat. (2011). Thus, incentivized gain
time applies equally to offenders with HFO and non-HFO status.
       2 We are aware that HFO inmates who accrue incentivized gain time, upon release
from prison, are placed on supervision subject to the conditional release requirements
authorized by section 947.1405, Florida Statutes (2011), for the period of time equal to
their accrued gain time. Evans v. Singletary, 737 So. 2d 505, 507 (Fla. 1999). Conditional
release has been described as “an extra post-prison probation-type program.” Id. We
note that an HFO inmate is ineligible for control release, a program used to reduce prison
populations in order to avoid overcrowding; however, no inmate has the right to be
included in any controlled release pursuant to the relevant statute. See § 947.146(2),
Fla. Stat. (2011). While not specifically mentioned by Appellant, both control release and
conditional release fall into the category of collateral consequences of a plea.


                                            5
       Based on the foregoing, we sua sponte considered the matter en banc and now

recede from Williams v. State, 2 So. 3d 1089 (Fla. 5th DCA 2009), and Murphy v. State,

952 So. 2d 1214 (Fla. 5th DCA 2007), to the extent that those decisions (1) required trial

courts to include in plea colloquies an Ashley-based discussion of the possible impact

habitualization could have on accrual of gain time, despite the legislative abolition of basic

gain time; and (2) found that ineligibility for gain time or early release through certain

programs is a direct consequence of a plea. We also certify conflict with the decisions of

the Second District in Parker v. State, 808 So. 2d 264 (Fla. 2d DCA 2002), Butler v. State,

764 So. 2d 794, 795 (Fla. 2d DCA 2000), Black v. State, 698 So. 2d 1370, 1371 (Fla. 2d

DCA 1997), and Watson v. State, 661 So. 2d 72, 72 (Fla. 2d DCA 1995).

       We agree with the postconviction court that Appellant did not demonstrate how he

was prejudiced by not receiving additional information about possible direct

consequences of HFO enhancement before entering his plea, nor is there any readily

apparent potential for prejudice to him under the facts of this case. Accordingly, we affirm

Ground Two B.

     AFFIRMED IN PART, REVERSED                        IN   PART,     REMANDED         WITH
INSTRUCTIONS; CONFLICT CERTIFIED.


COHEN, C.J., SAWAYA, PALMER, ORFINGER, TORPY, EVANDER, BERGER,
WALLIS, and LAMBERT, JJ., concur.




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