NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JEAN JAMISON, )
)
Appellant, )
)
v. ) Case No. 2D13-5846
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed February 17, 2016.
Appeal from the Circuit Court for
Hillsborough County; Kimberly K.
Fernandez, Judge.
Howard L. Dimmig, II, Public Defender, and
Julius J. Aulisio, Assistant Public Defender,
Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Wendy Buffington,
Assistant Attorney General, Tampa, for
Appellee.
ALTENBERND, Judge.
Jean Jamison appeals his judgment and sentence for attempted second-
degree murder. We remand this case for the trial court to determine whether it needed
to appoint conflict-free counsel to represent Mr. Jamison on his motion to withdraw plea,
which he filed pro se within thirty days of his rendered sentence. See Fla. R. Crim. P.
3.170(l). The trial court will also need to address Mr. Jamison's competency on remand,
and at a minimum, it must enter a written order of competency. We expressly do not
reverse Mr. Jamison's judgment and sentence at this time because, with the assistance
of counsel, Mr. Jamison may ultimately decide to withdraw his motion to withdraw plea.
On October 9, 2009, Mr. Jamison and Arnold Waldale Fields engaged in a
fight with two other men. Mr. Jamison allegedly stabbed the first man multiple times.
That man survived. Mr. Fields killed the second man when the second man came to the
aid of the first man. Mr. Jamison and Mr. Fields were charged in a single information,
but Mr. Jamison was charged only for the attempted second-degree murder of the first
man, which is a first-degree felony punishable by life imprisonment. See § 782.04(2),
Fla. Stat. (2009). The State filed a notice of its intent to sentence Mr. Jamison for that
offense as both a prison releasee reoffender and a habitual felony offender. The
charges against Mr. Fields were resolved separately, and he is serving a life sentence
for murder.
The trial court declared Mr. Jamison incompetent to proceed in September
2012 and committed him to the Department of Children and Families. In May 2013,
following a competency hearing, the trial court entered an order finding Mr. Jamison
competent to proceed. But, about a month later and just before trial, Mr. Jamison's
counsel filed another motion to determine Mr. Jamison's competency to stand trial. The
trial court ordered additional evaluations, which resulted in two experts filing reports
opining that Mr. Jamison was competent and one expert filing a conflicting report.
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Mr. Jamison's case was set for trial on June 10, 2013. The motion to
determine competency was scheduled for hearing on June 11, 2013.1 On the morning
of June 10, prior to jury selection, counsel for Mr. Jamison reported to the trial court that
Mr. Jamison was acting strangely in his holding cell. The trial court brought Mr.
Jamison into the courtroom and carefully explained that the two experts believed that he
was malingering and that the court would allow Mr. Jamison to fully participate at trial
without shackles or handcuffs so long as he was not disruptive. Mr. Jamison had not
asked to be excused from the courtroom, but his counsel was worried about his own
personal safety and was also worried that Mr. Jamison would suffer prejudice in the
eyes of the jurors if he were to act strangely in front of them.
With Mr. Jamison present, the State announced that it had filed a
superseding information adding an additional count of aggravated battery with a
weapon causing great bodily harm, a second-degree felony. See § 784.045(1)(a), Fla.
Stat. (2009).2 The State explained that it also intended to notice Mr. Jamison for
sentencing both as a prison releasee reoffender and a habitual felony offender on this
new charge after the court made a finding of Mr. Jamison's competence. Thus, as the
trial commenced, Mr. Jamison was facing the possibility of sentences between thirty
years' imprisonment and life imprisonment.
1
According to the trial transcript, two of the experts were not available to
testify until June 11, 2013. However, because jury selection was held on Mondays only,
the trial was still scheduled to begin on June 10, 2013, which was a Monday.
2
The same man is the alleged victim of the aggravated battery and the
attempted second-degree murder. Whether this raises double jeopardy concerns is not
a matter we need to address at this juncture.
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At that point, the State gave Mr. Jamison an opportunity to plead to the
attempted second-degree murder charge in exchange for twenty-five years'
imprisonment, concurrent with a fifteen-year sentence that Mr. Jamison was already
serving for charges in an unrelated case. The term of imprisonment was to be followed
by a term of probation. The plea did not involve habitual offender or prison releasee
reoffender status. The record reflects that this was not a new offer but a final chance at
an offer that the State had made earlier. Mr. Jamison elected to accept the offer.
The trial court prudently did not accept the plea at that time. The court
was aware that there was an outstanding issue of Mr. Jamison's competency and that a
hearing on the issue was scheduled for the following day. The experts were scheduled
to testify regarding the contents of their reports at that hearing. Accordingly, the court
instructed Mr. Jamison's attorney to speak with Mr. Jamison to determine whether "he
w[ould] stipulate to the reports." The trial court explained that afterwards it wanted to
bring Mr. Jamison into court to "make that finding." At this point, a recess was taken so
Mr. Jamison's attorney could discuss the matter with Mr. Jamison.
When court resumed later in the morning, the trial court immediately
confirmed that Mr. Jamison was communicating coherently, albeit slowly, with his
counsel. Mr. Jamison still wanted a competency hearing. The court explained that
counsel could try to arrange for the experts to testify that day, before jury selection.
However, the court explained that if the experts were not available to testify that day,
they would still need to proceed with jury selection, and that if that happened, any plea
would be open to the court.
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The court took another recess, and Mr. Jamison's counsel again consulted
with him. Afterwards, counsel advised the court that Mr. Jamison had decided that he
"wanted to stipulate to the reports." The trial court placed Mr. Jamison under oath and
carefully made him answer questions to demonstrate his level of understanding and to
confirm that after consulting with his attorney, he wanted his attorney "to stipulate to the
contents of those reports and that [Mr. Jamison was], in fact, competent in th[e]
proceeding." (Emphasis added.) The trial court questioned Mr. Jamison to confirm that
he independently remembered the interviews with the doctors and when they had
occurred. The court also questioned Mr. Jamison's counsel, who confirmed that he
believed that Mr. Jamison had understood their communications.
The court then stated:
Okay. You need to prepare an order for me,
[defense counsel]. [Mr. Jamison has] answered all my
questions coherently and he's answered all my questions
appropriately, and I have no reason to believe he is
incompetent.
So the Defense, having stipulated to the
reports, I am going to make a finding that the Court is going
to adopt the opinions of Dr. Cipriano as well as Dr. Bursten,
that, in fact, [Mr. Jamison] is competent to stand trial and
that all information indicates that the alleged trial
incompetence represents his intent to consciously avoid
criminal responsibility and that he is malingering and
feigning. So the Court is going to find him competent and
you just need to prepare an order to that respect.
According to our record, no order was actually prepared or recorded. Thereafter, Mr.
Jamison was sentenced in accordance with his plea.3
3
When the State orally communicated the plea offer to Mr. Jamison before
jury selection, it recited a term of ten years of probation. However, the written plea
agreement and sentence reflect a term of five years of probation.
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Within thirty days, Mr. Jamison filed a motion to withdraw his plea. Like
many pro se pleadings, it is not a model pleading. Nevertheless, he alleges in his
motion that he entered his plea involuntarily because his counsel "affirmatively
misadvise[d]" him about "the maximum length of the sentence he would have to
complete." It is useful at this point to recall that the sentence in this case is concurrent
with a sentence that Mr. Jamison was already serving. The maximum length of a
sentence can be difficult to explain in such cases. The trial court denied the motion as
facially insufficient without holding a hearing to determine whether it needed to appoint
conflict-free counsel to represent Mr. Jamison on his motion or to resolve the merits of
the motion.
Although our record does not contain the evidence that the State was
prepared to present against Mr. Jamison at this trial, it does suggest that Mr. Jamison's
negotiated plea was a very favorable contract. He is serving a twenty-five-year prison
sentence that is concurrent with the sentences that commenced in 2011 for his earlier
offenses. His sentence is gain-time eligible. If he withdraws his plea and a jury convicts
him of either attempted second-degree murder or aggravated battery, he could serve a
much longer, consecutive sentence under the restrictions applicable to a habitual felony
offender or a prison releasee reoffender. Thus, Mr. Jamison should think long and hard
about the wisdom of proceeding with his motion to withdraw his plea.
Nonetheless, we are compelled to remand this matter for further
proceedings. "Ordinarily, a pro se motion filed by a represented party is a nullity."
Burns v. State, 50 So. 3d 744, 746 (Fla. 2d DCA 2010) (citing Smith v. State, 21 So. 3d
72, 74 (Fla. 1st DCA 2009)). However, when a defendant moves to withdraw a plea
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"based on allegations such as that counsel misadvised him, made affirmative
misrepresentations, or coerced him into accepting a plea, the defendant has made
claims that give rise to an adversarial relationship." Sheppard v. State, 17 So. 3d 275,
286 (Fla. 2009). In such a case, unless the defendant's allegations are conclusively
refuted by the record, the trial court is obligated to hold a limited hearing to determine
whether an adversarial relationship between the defendant and his counsel in fact
exists. Id. at 287 & n.9. The defendant, his counsel, and the State must all be present
at the hearing. Id. at 287. If the trial court determines from the hearing that an
adversarial relationship exists, it must either discharge counsel or permit counsel to
withdraw and appoint conflict-free counsel to represent the defendant on his or her
motion to withdraw. Id.
Here, Mr. Jamison alleged that his plea was involuntary because his trial
counsel "affirmatively misadvise[d]" him about "the maximum sentence he would have
to complete in the Department of Corrections." "Unlike a general allegation of a conflict
of interest with [his] lawyer," this allegation that counsel misadvised Mr. Jamison about
the terms of his plea is sufficient to create an adversarial relationship. See Sheppard,
17 So. 3d at 286. We thus conclude that Mr. Jamison's motion, which provided a
specific factual allegation to support his claim of misadvice, was sufficient to require a
Sheppard hearing. Cf. Burns, 50 So. 3d at 747 (concluding that the defendant's
allegations that "his original counsel misadvised him and rendered the plea unknowing
and involuntary" were sufficient to invoke the Sheppard procedure). If the trial court
determines on remand that the allegation is true, it may be a basis to allow Mr. Jamison
to withdraw his plea. See Sheppard, 17 So. 3d at 283 ("[M]isrepresentations or
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mistaken advice by counsel concerning the length of the sentence may be a basis to
allow a defendant to withdraw a plea.").
Moreover, Mr. Jamison's allegation that his counsel misadvised him about
the maximum sentence he would serve under the plea is not refuted by the record. We
have the transcript of the plea colloquy. However, we know from what transpired on the
record before Mr. Jamison entered the plea that counsel and Mr. Jamison had multiple
off-the-record discussions about the plea and the issue of Mr. Jamison's competency.
Thus, the trial court should have held a Sheppard hearing to determine whether it
needed to appoint conflict-free counsel to represent Mr. Jamison on his motion to
withdraw. See id. at 287; Burns, 50 So. 3d at 746.
On remand, the trial court must follow the Sheppard procedure. It must
also revisit the issue of competency. At a minimum, the trial court needs to enter a
written order resolving the motion to determine competency. See Dougherty v. State,
149 So. 3d 672, 678 (Fla. 2014) ("[I]f a trial court finds that a defendant is competent to
proceed, it must enter a written order so finding."). As cautious as the trial court was in
this case, the case law does not permit a trial court to accept a stipulation of
competency from a defendant to proceed to trial or to accept a plea. See id.; Shakes v.
State, No. 2D14-4319 (Fla. 2d DCA Feb. 10, 2016). Although it is likely that the trial
court intended to make an independent finding of competency based on Mr. Jamison's
agreement that the court could make that decision based on the reports without the
testimony of the experts, the transcript is not clear on this ruling. This court recently
discussed similar competency issues in Shakes. The trial court simply needs to assure
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that its record is adequate on this issue under the requirements explained in Dougherty
and Shakes before it resolves the pending motion to withdraw plea.
Remanded with instructions.
NORTHCUTT and SLEET, JJ., Concur.
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