                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

ROBERT EARL HYPES,                    NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D14-2599

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed May 4, 2015.

An appeal from the Circuit Court for Duval County.
Tatiana Salvador, Judge.

Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jessica Judith DaSilva, Assistant Attorney
General, Tallahassee, for Appellee.




CLARK, J.

      Appellant, Robert Earl Hypes, appeals an order of the trial court denying his

motion to withdraw a guilty plea filed before sentencing.       As we did in his

companion case, Hypes v. State, 1D14-2597, we reverse.
      The trial court erred when it did not permit Appellant to withdraw his guilty

plea before sentencing after Appellant’s attorney openly acknowledged – in a

written motion and in court – he had provided Appellant erroneous legal advice

about the range of prison time Appellant was eligible to receive if he pled guilty.

      Mr. Hypes pled guilty to all charges against him. There was no agreement

as to his sentence. Defense counsel advised Appellant he faced a minimum of 5

years in prison and a maximum of life in prison. At the later sentencing hearing,

Appellant’s lawyer saw the scoresheet for the first time. The sentencing scoresheet

(which is not in dispute) showed a minimum of 53 years in prison and a maximum

of life in prison. Upon the realization that he had misadvised Appellant about the

range of prison time Appellant faced, defense counsel urged the trial court to allow

Appellant to withdraw his guilty plea because the plea had been entered on

erroneous legal advice. Appellant testified that he would have exercised his right

to trial and not entered the guilty plea had he known the minimum sentence he was

facing was 53 years.

      The trial court denied Appellant’s motion to withdraw his guilty plea, and

instead accepted the State’s misguided suggestion that any error made by

Appellant when he entered the plea could be remedied by the State “waiving” the

minimum sentence of 53 years, and further suggesting the court could consider the

bottom range to be 5 years imprisonment. The State argued that because it created

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a remedy, it did not matter that Appellant entered the guilty plea on erroneous legal

advice.

      Rule 3.170(f), Florida Rules of Criminal Procedure, provides “the 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.” If the defendant establishes good

cause, the court must allow the defendant to withdraw the plea. Tanzi v. State,

964 So. 2d 106 (Fla. 2007); Crane v. State, 69 So. 3d 357 (Fla. 2d DCA 2011); and

Murray v. State, 36 So. 3d 792 (Fla. 1st DCA 2010). Once good cause is

established, the court no longer has discretion to consider the request to withdraw.

A showing of good cause “entitles the defendant to withdraw a plea as a matter of

right.” Tanzi, 964 So. 2d at 113 (quotation omitted). This Court need not consider

whether the trial court abused its discretion in denying Appellant’s motion to

withdraw his guilty plea. The trial court has no discretion to exercise where the

defendant established good cause for withdrawing a plea. This case mirrors the

Murray case.

      The Tanzi court informs us of all we need to know on this topic: what rule

applies, how it is to be applied, what factors the trial court must consider. First, the

Tanzi court noted that Rule 3.170(f) is to be liberally construed and is intended to

be favorable to defendants, noting that the law prefers a trial on the merits. Tanzi,

964 So. 2d at 113; Nicol v. State, 892 So. 2d 1169 (Fla. 5th DCA 2005) (citing

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Williams v. State, 762 So. 2d 990 (Fla. 4th DCA 2000)). When a plea is entered

under “mental weakness, mistake, surprise, misapprehension, fear, promise, or

other circumstances affecting [a defendant’s] rights,” the trial court should allow

the defendant to withdraw the plea. Tanzi, 964 So. 2d at 113 (quotation omitted).

Good cause “has been found to exist when the defendant’s plea was ‘infected by

misapprehension, undue persuasion, ignorance, or was entered by one not

competent to know its consequence or that it was otherwise involuntary, or that the

ends of justice would be served by withdrawal of such plea.’” Crane, 69 So. 3d at

358 (quotation omitted). Appellant’s guilty plea based upon flawed legal advice is

certainly a plea entered under mistake or misapprehension. This is exactly what

happened in Murray.

      Because Rule 3.170(f) contemplates a withdrawal of a plea when the

defendant was operating under mistake, fear, mental weakness, misapprehension,

or ignorance when he or she entered the plea, the determination of whether a plea

was knowingly, intelligently, and voluntarily entered must be made as of the time

the plea was entered – not weeks later at the sentencing hearing.

      Thus, even if well-intentioned, the State’s self-styled, ill-conceived

“solution” to a situation already covered by rule and decisional law is not

acceptable and cannot be approved by this Court. The trial court erred when it




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denied Appellant’s request to withdraw his guilty plea because it was based upon

erroneous legal advice.

      Accordingly, we reverse and remand for further proceedings.

ROBERTS, J., CONCURS and ROWE, J., CONCURS IN RESULT.




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