            DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

                          HAROLD INGRAHAM, JR.,
                                Appellant,

                                        v.

                             STATE OF FLORIDA,
                                  Appellee.

                                 No. 4D17-3605

                                 [June 6, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach
County; Samantha Schosberg Feuer, Judge; L.T. Case No. 2016CF010962AXX.

   Jacob M. Noble, Palm Beach County, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

   Appellant Harold Ingraham, Jr. appeals the trial court’s summary denial of
his motion to withdraw his guilty plea. Appellant contends his plea was
involuntarily made and that he is entitled to an evidentiary hearing with respect
to his motion. Alternatively, he argues that he was denied due process because
the trial court did not permit his conflict-free counsel the opportunity to amend
the motion. We agree with the trial court that Appellant’s motion was facially
insufficient to entitle him to an evidentiary hearing. However, we reverse and
remand, agreeing with Appellant that he was entitled to have conflict-free
counsel amend the motion to withdraw plea.

                                  Background

    Appellant was charged with sexual battery on a victim eighteen-years of age
or older. Pursuant to an agreement with the State, Appellant entered a guilty
plea to the lesser charge of aggravated battery. Appellant’s initial attorney then
filed a motion to withdraw plea. The motion alleged the plea was involuntary
because Appellant’s initial attorney failed to inform him of the “weakness in the
State’s case against him until after the plea was accepted.” The motion did not
identify what “weaknesses” were withheld from Appellant. Also in the motion,
Appellant’s initial attorney requested to withdraw from the case based on the
nature of the allegations, and asked the court to grant the motion to withdraw
plea or appoint conflict-free counsel to further pursue the withdrawal. The trial
court granted the initial attorney’s request to withdraw and appointed conflict-
free counsel to represent Appellant. However, the following day, the trial court
summarily denied Appellant’s motion to withdraw his plea.

                                     Analysis

   We review the trial court’s summary denial of a motion to withdraw a plea
after sentencing for abuse of discretion. Hamil v. State, 106 So. 3d 495, 497 (Fla.
4th DCA 2013) (citing Woodly v. State, 937 So. 2d 193, 196 (Fla. 4th DCA 2006)).

    To file a facially sufficient motion to withdraw plea after sentencing, the
burden is on the defendant to prove that a manifest injustice has occurred (for
example, that the plea was involuntarily entered) and that withdrawal is
necessary to correct this injustice. See id. (citing Panchu v. State, 1 So. 3d 1243,
1245 (Fla. 4th DCA 2009)). But the motion to withdraw plea must be more than
a mere recitation of general allegations. See Saintiler v. State, 109 So. 3d 303,
305 (Fla. 4th DCA 2013) (finding the motion “facially insufficient because the
appellant did not set forth any factual basis to support his conclusory
allegations.”); Powell v. State, 929 So. 2d 54, 55 (Fla. 5th DCA 2006)
(“[C]onclusory allegations are insufficient[;] a defendant must offer some proof
that his plea was not voluntarily entered.”). Here, Appellant’s motion was facially
insufficient because it did not set forth any factual basis to support his
conclusory allegation that his initial attorney failed to inform him of certain
“weaknesses” in the State’s case.

   However, Appellant’s motion was filed by the same attorney whose purported
action/inaction was the basis of the motion to withdraw plea. Not every motion
to withdraw plea based on failure to advise requires conflict-free counsel. A trial
court is only required to appoint conflict-free counsel if an adversary relationship
exists and the defendant’s allegations are not conclusively refuted by the record.
See Nelfrard v. State, 34 So. 3d 221, 223 (Fla. 4th DCA 2010) (citing Sheppard v.
State, 17 So. 3d 275, 286-87 (Fla. 2009)). Here, the trial court granted the initial
attorney’s request to withdraw, implicitly acknowledging a potential conflict
between Appellant and the initial attorney who prepared the motion to withdraw
plea.

    “It is difficult to discern how defense counsel could have effectively
represented defendant at the motion to withdraw his plea when the very basis
for the motion was allegations concerning defense counsel’s own misconduct . .
. .” Roberts v. State, 670 So. 2d 1042, 1045 (Fla. 4th DCA 1996). By summarily
denying the motion to withdraw plea the day after conflict-free counsel was
appointed, the trial court did not afford an opportunity for this substitute
counsel to amend the motion. The inconsistency between appointing substitute

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counsel and not permitting that substitute counsel with an opportunity to act
on Appellant’s behalf is an abuse of discretion.

                                  Conclusion

   We reverse the trial court’s denial of Appellant’s motion to withdraw plea and
remand to allow conflict-free counsel an opportunity to file an amended motion.

   Reversed and Remanded.

LEVINE and CONNER, JJ., concur.

                              *         *        *

   Not final until disposition of timely filed motion for rehearing.




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