“You Better Get Up…Stand Up for your Right… and Don’t Give up the Fight….” Bob Marley (1945-1981)

June 12, 2023

Caution is Needed When Choosing a Lawyer to Defend Against Criminal Charges

In our cases of the week, the Fourth District showed why an abundance of caution is needed when choosing a lawyer to defend against criminal charges, and why one should “never give up the fight,” when a lawyer renders ineffective assistance.

LAWTON COHEN v. STATE, — So.3d —- (2023); 2023 WL 2505855 (Memo) Case No. 4D22-1099 (Filed March 15, 2023)

Lawton Cohen appealed an order summarily denying his motion for post-conviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure, the procedural vehicle generally used to raise ineffective assistance of counsel claims. Cohen appealed from the denial of all the ineffectiveness claims raised in his 3.850 motion. The Fourth District affirmed the denial of post-conviction relief as to all claims except for one that required reversing and remanding for further proceedings.

Cohen argued that his counsel was ineffective by agreeing to a jury instruction on the lesser offense of an attempt to leave the scene of an accident involving death because there was no trial evidence to support the giving of the attempt instruction. The Fourth District, following Badger v. State, 933 So. 2d 729 (Fla. 4th DCA 2006), reversed the denial of 3.850 relief as to this claim, and remanded for “either an evidentiary hearing or the attachment of records conclusively refuting the claim.” See Cohen at *1 (citing Badger at 730) (reversing summary denial of a claim that counsel was ineffective for failing to object to an attempted burglary instruction where evidence showed only a completed burglary).

ROBERT KEY v. STATE, — So.3d —- (2023); 2023 WL 2314831 Case No. 4D22-1495 (Filed March 1, 2023)

Robert Key was charged with an attempt to commit first-degree murder with a deadly weapon. The prosecution offered Key a plea bargain to 15 years in prison, which Key rejected. At trial, Key admitted that he was guilty of aggravated battery, a lesser-included crime, but argued there was no evidence of the intent needed to uphold a conviction on the greater offense. The jury found him guilty of the admitted aggravated battery. After the jury trial, the state filed its notice of intent to seek a “habitual felony offender” (HFO) sentence, and the trial court sentenced Key to 30 years in prison as an HFO.

At the evidentiary hearing held on his Rule 3.850 motion claiming ineffective assistance of counsel, Key testified that he rejected the 15-year plea bargain because counsel misadvised that he would likely be convicted at trial of aggravated battery and would face a maximum sentence of 15 years in prison. Counsel admitted he believed Key had a “free swing” at trial because the state’s plea offer was the maximum sentence for aggravated battery, but he failed to take into account that Key met the criteria of an HFO and could be sentenced to 30 years for the lesser-included crime. Key and his ineffective counsel both testified that, “in all likelihood,” Key would have accepted the 15-year plea bargain had he known he could be sentenced up to 30 years, even if his trial defense successfully resulted in a conviction for lesser included aggravated battery offense. The court denied the 3.850 motion, finding that Key could not show a reasonable probability that the trial court would have accepted a plea bargain.

Key demonstrated prejudice resulted from the misadvise, by showing a reasonable probability he would have accepted the 15-year plea bargain if counsel had properly advised him that he faced 3o years as an HFA, the state would not have withdrawn the offer, the judge would have accepted the plea, and “his conviction or sentence, or both, would have been less severe than that which was ultimately imposed.”  Key at *2 (quoting Alcorn v. State, 121 So. 3d 419, 430 (Fla. 2013)); id. (citing Strickland v. Washington, 466 U.S. 668, 694 (1984) (the “reasonable probability” is one “sufficient to undermine confidence in the outcome” of the proceeding)).

As to the first Alcorn prong, both Key and his ineffective counsel testified Key would have accepted the plea bargain if counsel had correctly advised him that he could be sentenced up to 30 years as an HFO, even if successful in obtaining a conviction for the lesser-included aggravated battery. The state did not introduce evidence to refute the corroborated assertion. As for the second and third Alcorn prongs, the Fourth District objectively assessed the circumstances at the time the plea offer was made and there was no reason for the state prosecution to withdraw the offer or for the judge to reject the plea. Key at *2 (citing Missouri v. Frye, 566 U.S. 134, 148-49 (2012)); id. at n. 1 (rejecting reliance on judge’s comments during jury selection, when Key tried to reopen plea negotiations as the comments were not “competent, substantial evidence as to whether the judge would have accepted the plea if Key had accepted the state’s offer at the time it was made.” (quoting Alcorn at 432 (prejudice must be determined based on the circumstances as they existed at the time when the plea offer was made)). Finally, as to the fourth Alcorn prong, it was clear that the sentence would have been less severe had he accepted the 15-year offer.

The criminal defense lawyer who was ineffective during plea bargaining in the Key case at least had the decency of fully admitting his responsibility for his error. Both the Cohen and Key cases decided by the Fourth District in favor of defendants during March 2023 inspire faith in the rule of law needed to “never give up the fight,” when criminal defense lawyers render ineffective assistance in violation of the Sixth Amendment to the United States Constitution.

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