Major v. State

We have for review Major v. State, 790 So.2d 550, 553 (Fla. 3d DCA 2001), in which the Third District Court of Appeal certified the following question to be of great public importance:

WHETHER THE TRIAL COURT OR COUNSEL HAVE A DUTY TO ADVISE A DEFENDANT THAT [THE DEFENDANT’S] PLEA IN A PENDING CASE MAY HAVE SENTENCE ENHANCING CONSEQUENCES IF THE DEFENDANT COMMITS A NEW CRIME IN THE FUTURE.

We have jurisdiction, see art. V, § 3(b)(4), Fla. Const., answer the certified question in the negative, and approve the Third District’s decision in this case.

In 1993, petitioner Fritz Major was charged with aggravated assault with a deadly weapon. Prior to his trial in the Eleventh Judicial Circuit Court in and for Dade County, Florida, Major, while represented by counsel, pled no contest to this charge. The trial court, after engaging Major in a plea colloquy, adjudicated him guilty and sentenced him to a term of eighteen months of incarceration. During the colloquy, the trial court did not advise Major that his plea could have sentence enhancing consequences if Major committed crimes in the future. After his release from state prison, Major committed a federal crime, which the United States Attorney for the Northern District of Florida successfully prosecuted. Major’s federal sentence was enhanced from 210 months to 364 months due to his prior criminal adjudication in state court.

Major petitioned this Court for a writ of error coram nobis and attacked the validity of his 1993 plea on the theory that the trial court and his defense counsel failed to inform him of the future enhancement effect his state adjudication would have in a subsequent prosecution. We transferred the petition to the Eleventh Judicial Circuit Court, which court denied the petition, finding that the possible future enhancement effect of an adjudication resulting from a plea was a collateral consequence of the plea. The trial court also concluded that neither the trial court nor defense counsel had a duty to advise Major of collateral consequences to the plea. Major appealed the trial court’s denial to the' Third District.

Pursuant to this Court’s decision in Wood v. State, 750 So.2d 592 (Fla.1999), the Third District considered Major’s petition for writ of error coram nobis to be one filed pursuant to Florida Rule of Criminal Procedure 3.850. Adhering to its prior case law, see, e.g., State v. Fox, 659 So.2d 1324 (Fla. 3d DCA 1995), the Third District held that neither the trial court nor defense counsel had a duty to anticipate a defendant’s future recidivism. See Major, 790 So.2d at 551. Agreeing with the trial court, the Third District concluded that future sentence enhancement is a collateral and not a direct consequence of a plea, and therefore neither the trial court nor defense counsel was under a duty to advise Major of this potential consequence at the time he pled to the state crime. See id. at 552. In so holding, the Third District distinguished an apparent statement to the contrary in this Court’s opinion in State v. Perry, 786 So.2d 554, 557 (Fla.2001). See Major, 790 So.2d at 552. Finding the statement in Perry to be dicta, the Third District held that Perry did not overrule that district’s case law holding that potential future sentence enhancement is a collateral and not a direct consequence of a plea. See Major, 790 So.2d at 552. Thus, the Third District denied Major postcon-viction relief but certified the instant question so that it may be authoritatively resolved. See id. at 553.

ANALYSIS

We conclude that we answered the certified question in the negative in our decision in State v. Ginebra, 511 So.2d 960 (Fla.1987), and that decision continues to correctly state the law on this issue. In Ginebra we explained:

It is clear under both state and federal decisions that the trial court judge is under no duty to inform a defendant of the collateral consequences of his guilty plea. Florida Rule of Criminal Procedure 3.172(c), and its counterpart Federal Rule of Criminal Procedure 11(c), set forth those areas which the trial court judge must inquire of the defendant before accepting a guilty plea. The trial judge’s obligation to ensure that the defendant understands the direct consequences of his plea has been consistently interpreted to encompass only those consequences of the sentence which the trial court can impose....

We prefer the reasoning expressed in the federal cases and therefore disapprove [Edwards v. State, 393 So.2d 597 (Fla. 3d DCA 1981)]. The focus of whether counsel provided constitutionally effective assistance in the context of a plea is whether counsel provided his client “with an understanding of the law in relation to the facts, so that the accused may make an informed and conscious choice between accepting the prosecution’s offer and going to trial.” Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir.1984). A defendant’s lack of knowledge that a plea of guilty may lead to deportation does nothing to undermine the plea itself which is, in effect, “a confession in open court as to the facts alleged.” United States v. Sambro, 454 F.2d at 921. See Brady v. United States, 397 U.S. 742, 748[, 90 S.Ct. 1463, 25 L.Ed.2d 747] (1970) (“[c]entral.to the plea ... is the defendant’s admission in open court that he committed the acts charged”).

We therefore hold that counsel’s failure to advise his client of the collateral consequence of deportation does not constitute ineffective assistance of counsel. We note that there are numerous other collateral consequences of which a defendant does not have to be knowledgeable before his plea is considered knowing and voluntary. See [Michel v. United States, 507 F.2d 461, 465 n. 4 (2d Cir.1974) ].

Id. at 960-62 (footnotes omitted).

Our decision in Ginebra is consistent with the United States Supreme Court’s decision in Mabry v. Johnson, 467 U.S. 504, 508-09, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984), in which the Court reasoned:

It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked. It is also well settled that plea agreements are consistent with the requirements of voluntariness and intelligence — because each side may obtain advantages when a guilty plea is exchanged for sentencing concessions, the agreement is no less voluntary than any other bargained — for exchange. It is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired. In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), we stated the applicable standard:

“[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g. bribes).” Id., at 755[, 90 S.Ct. 1463] (quoting Shelton v. United States, 246 F.2d 571, 572, n. 2 (CA5 1957)) (en banc) (in turn quoting 242 F.2d 101, 115 (Tuttle, J., dissenting to panel opinion)), reversed on other grounds, 856 U.S. 26[, 78 S.Ct. 563, 2 L.Ed.2d 579] (1958).

(Footnotes omitted.)

The Eleventh Circuit Court of Appeals cited to the Supreme Court’s decision in Mabry in exploring a similar issue:

Moreover, we note that the voluntariness of the plea depends only upon whether the defendant is aware of the direct consequences of the plea. Mabry v. Johnson, 467 U.S. 504, 509[, 104 S.Ct. 2543, 81 L.Ed.2d 437] (1984). For example, the use of a plea as a sentencing enhancement for another crime is considered a collateral, not a direct, consequence. Wright v. United States, 624 F.2d 557 (5th Cir.1980).

Heath v. Jones, 941 F.2d 1126, 1139 n. 16 (11th Cir.1991).

Since our decision in Ginebra, Florida’s district courts of appeal have consistently held that the trial court and counsel are not required to inform the defendant of potential sentence enhancing effects to the sentence of a crime committed in the future because such potential consequences are collateral to the plea. The Third District in its 1995 Fox opinion reasoned:

One of the purposes for the plea colloquy between the court and the defendant is to ensure that the defendant understands the consequences of his [or her] plea. Trenary v. State, 473 So.2d 820, 822 (Fla. 2d DCA 1985), review denied, 486 So.2d 598 (Fla.1986). However, a judge is required to inform a defendant only of the direct consequences of his [or her] plea and is under no duty to apprise him [or her] of any collateral consequences. State v. Ginebra, 511 So.2d 960, 961-62 (Fla.1987). A direct consequence is one that has a “definite, immediate, and largely automatic effect on the range of the defendant’s punishment.” Zambuto v. State, 413 So.2d 461, 462 (Fla. 4th DCA 1982) (citations omitted).

“[A] plea’s possible enhancing effect on a subsequent sentence is merely a collateral consequence of the conviction; it is not the type of consequence about which a defendant must be advised before the defendant enters the plea.” Id. at 463 (citation omitted); see also United States v. Jordan, 870 F.2d 1310, 1318 (7th Cir.), cert. denied, 493 U.S. 831[, 110 S.Ct. 101, 107 L.Ed.2d 65] (1989). The sentencing court is not required “to anticipate a defendant’s recidivism.” United States v. Woods, 870 F.2d 285, 288 (5th Cir.1989). Therefore, the fact that the felony adjudication might be used against the defendant in a subsequent federal prosecution was a collateral consequence of the plea and was not an issue the trial judge was required to cover in the plea colloquy.

659 So.2d at 1327. In Bethune v. State, 774 So.2d 4, 5 (Fla. 2d DCA 2000), the Second District Court of Appeal added:

Trial counsel need only advise a defendant of direct consequences of a plea. See State v. Ginebra, 511 So.2d 960 (Fla.1987), superseded on other grounds by Florida Rule of Criminal Procedure 3.172; State v. De Abreu, 613 So.2d 453, 453 (1993) (holding “In re Amendments to Florida Rules of Criminal Procedure, 536 So.2d 992 (Fla.1988) ... supersede[s] Ginebra to the extent of any inconsistency”). Counsel is not required to inform his [or her] client of potential sentence-enhancing consequences of his [or her] plea because it is a collateral consequence. See Rhodes v. State, 701 So.2d 388 (Fla. 3d DCA 1997). Thus, failure to do so cannot substantiate an ineffective assistance of counsel claim. Id. at 389. Similarly, as a collateral consequence, use of a conviction to enhance a future sentence does not render a plea involuntary. See Sherwood v. State, 743 So.2d 1196 (Fla. 4th DCA 1999). Therefore, the trial court’s order is affirmed.

The Fourth District Court of Appeal has also explained:

Florida Rule of Criminal Procedure 3.170(k) requires the trial court to determine that a defendant’s plea is voluntary. One aspect of a voluntary plea is that the defendant understand the reasonable consequences of his [or her] plea, including “the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.” Fla. R.Crim. P. 3.172(c)(1); Ashley v. State, 614 So.2d 486, 488 (Fla.1993). However, a trial court is required to inform a defendant only of the direct consequences of the plea, and is under no duty to advise the defendant of any collateral consequences. See State v. Ginebra, 511 So.2d 960, 961 (Fla.1987); State v. Fox, 659 So.2d 1324, 1327 (Fla. 3d DCA 1995), rev. den., Fox v. State, 668 So.2d 602 (Fla.1996). In Zambuto v. State, 413 So.2d 461, 462 (Fla. 4th DCA 1982), this court adopted the fourth circuit’s definition of a “direct consequence” of a plea:

“The distinction between ‘direct’ and ‘collateral’ consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1366 (4th Cir.) cert. denied, 414 U.S. 1005[, 94 S.Ct. 362, 38 L.Ed.2d 241] (1973).

Daniels v. State, 716 So.2d 827, 828 (Fla. 4th DCA 1998).

Major argues that in Ashley v. State, 614 So.2d 486 (Fla.1993), we began to expand those consequences of a plea which a trial court must be assured a defendant understands before allowing a plea, even though those consequences are identified as collateral. This expansion, according to Major, has transformed the direct versus collateral analysis into an examination of whether a consequence is reasonably expected or possible from the plea. For support, Major cites to the First District Court of Appeal’s decision in Freels v. State, 701 So.2d 1207, 1209 (Fla. 1st DCA 1997), in which the First District concluded that this Court’s decision in Ashley transformed otherwise collateral consequences to “equal footing with direct consequences.” We do not agree with Major’s contention.

The defendant in Ashley appealed the imposed habitual felony offender sentence, which was greater than the statutory maximum for the crime charged but was less than the maximum possible sentence for a habitual felony offender. Ashley, 614 So.2d at 487. Importantly, the defendant pled no contest to the charged crime prior to the State’s filing of a notice to seek enhanced punishment on account of the defendant’s being a habitual offender. See id. While we rejected the State’s argument that no notice was required because habitualization is a collateral and not a direct consequence of a plea, see id. at 487-88, our resolution in Ashley did not transform the direct versus collateral analysis. Rather, we resolved Ashley on the basis that for a plea to be knowing and voluntary, the defendant must understand the maximum penalty provided by law. See 614 So.2d at 489. In the case of habitualization, we held the maximum penalty provided by law was the maximum penalty under the habitualization statute and not the statutory or sentencing guideline máximums. See 614 So.2d at 489. We vacated the habitual felony offender sentence in Ashley because that sentence was greater than what the defendant was advised. See id. at 490-91. We then held:

In sum, we hold that in order for a defendant to be habitualized following a guilty or nolo plea, the following must take place prior to acceptance of the plea: 1) The 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 [note] of habitualization.

[Note]. The defendant should be told of his or her eligibility for habitu-alization, the maximum habitual offender term for the charged offense, the fact that habitualization may affect the possibility of early release through certain programs, and where habitual violent felony offender provisions are implicated, the mandatory minimum term.

Id. at 490. In Ashley we did not recede from Ginebra’s specific holding that a trial court is not under a duty to inform a defendant of the collateral consequences of a guilty or no contest plea. See Ginebra, 511 So.2d at 961.

We do agree, though, with Major and the Second District’s opinion in Bismark v. State, 796 So.2d 584 (Fla. 2d DCA 2001), written by Judge Altenbernd, that when this Court’s recent opinion in State v. Perry, 786 So.2d 554 (Fla.2001), is read in conjunction with this Court’s opinion in Wood v. State, 750 So.2d 592 (Fla.1999), it appears that this Court receded from our direct versus collateral analysis in Ginebra. Upon our close examination of this issue, we hold that we did not so recede.

We acknowledge that in Perry we made the statement:

This Court accordingly has permitted a writ of error coram nobis where the petitioner asserted he was not informed his plea could constitute a “prior offense” in subsequent proceedings. See Wood v. State, 750 So.2d 592 (Fla.1999).

Perry, 786 So.2d at 557. However, in neither Perry nor Wood were we focusing on the substantive issue of direct versus collateral consequences as we did in Ginebra. In Perry, our focus was on whether the writ of error coram nobis was the appropriate procedural vehicle for obtaining the requested relief, which was an attack on the voluntariness of a plea. See 786 So.2d at 556. Furthermore, in Wood, our focus was on the time limit for filing a petition for a writ of error coram nobis. See 750 So.2d at 594. In neither decision did we cite to Ginebra or otherwise alter the holdings in Ginebra.

In order to clarify the state of the law, we recede from those statements in Perry that conflict with Ginebra. We also expressly hold that this Court did not recede from Ginebra in our decision in Wood.

In specific answer to the certified question, we hold that neither the trial court nor counsel has a duty to advise a defendant that the defendant’s plea in a pending case may have sentence enhancing consequences on a sentence imposed for a crime committed in the future. We expressly approve the statement set forth in the Third District’s opinion in this case:

[ A] judge is required to inform a defendant only of the direct consequences of his [or her] plea and is under no duty to apprise him [or her] of any collateral consequences. A direct consequence is one that has a “definite, immediate, and largely automatic effect on the range of the defendant’s punishment.”

Major, 790 So.2d at 551 (quoting Fox, 659 So.2d at 1327). We approve the less restrictive definition of direct consequence used by Florida’s district courts as stated in Zambuto v. State, 413 So.2d 461, 462 (Fla. 4th DCA 1982) (quoting Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1366 (4th Cir.1973)):

The distinction between “direct” and “collateral” consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.

CONCLUSION

Accordingly, we answer the certified question in the negative and approve the Third District’s decision in this case. We recede from those statements in State v. Perry, 786 So.2d 554, 557 (Fla.2001), that conflict with Ginebra.

It is so ordered.

HARDING, LEWIS, and QUINCE, JJ., concur.

PARIENTE, J., concurs in result only with an opinion.

ANSTEAD, J., concurs in result only.

SHAW, J., dissents with an opinion.

. Major filed the petition for writ of error coram nobis within the window established by this Court’s opinion in Wood v. State, 750 So.2d 592, 595 (Fla.1999) ("[A]ll defendants adjudicated prior to this opinion shall have two years from the filing date within which to file claims traditionally cognizable under co-ram nobis.”), to challenge the validity of a prior conviction or face a procedural bar. Major is not otherwise barred from filing the claim as he never was in custody for more than two years and has not previously attacked the validity of his plea. See id. at 597.

. Florida Rule of Criminal Procedure 3.172(c) was amended following the Ginebra decision to add subdivision (8) so that now by rule a trial court must address the defendant and determine whether he or she understands that the plea could have deportation consequences. See In re Amendments to Florida Rules of Criminal Procedure, 536 So.2d 992, 992 (Fla.1988). The rule requires the court to determine that the defendant understands

that if [the defendant] pleads guilty or nolo contendere the trial judge must inform him or her that, if he or she is not a United States citizen, the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Immigration and Naturalization Service. It shall not be necessary for the trial judge to inquire as to whether the defendant is a United States citizen, as this admonition shall be given to all defendants in all cases.

Fla. R.Crim. Pro 3.172(c)(8).

This rule amendment superseded our decision as to deportation. See State v. De Abreu, 613 So.2d 453, 453 (Fla.1993). This provision was amended prior to this Court's decision in Peart v. State, 756 So.2d 42 (Fla.2000).

. In Ashley, we reviewed Williams v. State, 316 So.2d 267 (Fla.1975), and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), regarding the requirement that a defendant’s plea must be knowing and voluntary. See 614 So.2d at 488-89. In Williams, which was based upon the mandates of Boykin, we held that for a plea to be knowing and voluntary a defendant must understand the maximum penalty that may be imposed for the charged offense. See 316 So.2d at 271.

. In State v. Wilson, 658 So.2d 521 (Fla.1995), we applied Ashley to a case where the petitioner alleged that at his plea colloquy the trial court misinformed the petitioner that the maximum penalty was fifteen years, even though the maximum penalty under the habitual offender statute was approximately thirty years. Under the Ashley analysis, we allowed petitioner to withdraw his plea. See Wilson, 658 So.2d at 523. Likewise, in Wilson, we did not recede from the direct versus collateral consequence analysis in Ginebra.

. Florida's district courts uniformly have applied the definition of direct consequence stated in Zambuto. See, e.g., Watrous v. State, 793 So.2d 6, 9 (Fla. 2d DCA 2001); Whipple v. State, 789 So.2d 1132, 1138 (Fla. 4th DCA 2001); Boutwell v. State, 776 So.2d 1014, 1016 n. 2 (Fla. 5th DCA 2001); State v. Fox, 659 So.2d 1324, 1327 (Fla. 3d DCA 1995); Blackshear v. State, 455 So.2d 555, 556 (Fla. 1st DCA 1984).