Filing # 54181904 E-Filed 03/24/2017 01:23:59 PM. IN THE CIRCUIT COURT OF THE 20" JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA THE STATE OF FLORIDA, CASE NO: 15CF000718 and 15CF000211 Plaintiff, a J, PATRICK BUCKLEY, Defendant. / MOTION TO WITHDRAW PLEA OF GUILTY COMES NOW the Defendant, J. Patrick Buckley, by and through his undersigned attorney and hereby files this, his motion to withdraw his previously entered plea of guilty. Florida Rules of Criminal Procedure 3.170(f) states that: Court may in its discretion, and shall in good cause, at any time before sentence, permit a plea of guilty or no contest to be withdrawn and, if the judgment of conviction has been entered thereon, set aside the judgment and allow the plea of not guilty, or with the consent of the prosecuting attorney, allow a plea of guilty or no contest to a lesser included offense, or a lesser degree of the offense charged, to be substituted for the plea of guilty or no contest. The fact that a defendant may have entered a plea of guilty or no contest and later withdrawn the plea, may not be used against the defendant in a trial of that cause.” Page ‘aw Fim of Prank A Rabin, a PA. 59 Bilnare Way Sli 7, Col Cable, lida 9, T(0 85-soo F 8) 50201 Filed Lee County Clerk of Courts Page 1The Supreme Court of Florida has provided guidance in cases of this nature stating that: “trial courts are encouraged to liberally grant motions made before sentencing.” State v. Partlow, 840 So.2d 1040, 1044-45 (Fla. 2003). This motion should be granted because the defendant's plea was made by mistake, by surprise, by misapprehension, by fear, and by other circumstances that affected his rights. The defendant's plea was not made knowingly and voluntarily; it was made upon mistaken advice of counsel, as well as the fact that the defendant did not know the direct consequences of his plea. At the time of the plea, the defendant was represented by attorney Christopher Whitney. Mr. Whitney was appointed to represent the defendant on December 30", 2015 and entered his appearance of record on January 6", 2016. The defendant believes that he has had approximately 4 meetings with Mr. Whitney about his case. In the first 3 meetings discussions were had about the defendant’s possible defenses to the charges. On December 8", 2016 after a motion hearing, the defendant accompanied his attorney back to the attorney’s office where the attorney first approached the subject of a plea. During that meeting, defense strategy was discussed and the defendant The defendant claims that this request was made on prior occasions, but not followed through. The requested the attorney to interview certain witne: defendant's lawyer told him that he believed that it would be impossible to come up with a viable defense and the defendant should plead guilty. Prior to this meeting, the defendant claims that he had not gone over the investigative reports or the depositions at any time with his lawyer, and did not know what they contained. Based upon his lawyer's advice that he had no possible chance Page ‘aw Fim of Prank A Rabin, a PA. 59 Bilnare Way Sli 7, Col Cable, lida 9, T(0 85-soo F 8) 50201 Filed Lee County Clerk of Courts Page 2of being acquitted at trial, the defendant considered the possibility of a plea. It should be noted that the defendant had a severe alcohol problem, both during the time of the alleged offense continuing through his incarceration. The lawyer told the defendant that the State had made a plea offer of 7 years incarceration followed by 10 years probation. He told the defendant that he should not accept this offer, that he would get him substantially less. At no time was the defendant ever shown a score sheet nor did he know that his minimum sentence was 25.5 months in state prison. The defendant's lawyer assured him that if he entered a plea, that the sentencing judge would be unaware of all of the facts that he would learn during a trial and that this would be to the defendant’s benefit come time of sentence. At all times the defendant felt that he had a viable, defendable case but his lawyer assured him that a conviction was inevitable and his only choice was that of a plea. Having not been given the investigative reports and depositions, coupled with his alcohol abuse, the defendant was not in a position to make such a decision. Four days later the defendant appeared in Court on December 12", 2016. His attorney filled out a FELONY PLEA FORM by hand and gave it to the defendant for his signature. The defendant did not have sufficient time, nor did he read the form, or asked his lawyer any questions about it. On the first page a box was checked with stated: “I do not wish to exercise my constitutional right to an appeal. My attorney has explained to me what an appeal is and how I can properly file for an appeal should I choose to Page3 ‘aw Fim of Prank A Rabin, a PA. 59 Bilnare Way Sli 7, Col Cable, lida 9, T(0 85-soo F 8) 50201 Filed Lee County Clerk of Courts Page 3do so. My attorney has advised me that if I cannot afford an attorney, one will be appointed for me by the Court.” ‘There was no legal or practical reason for this defendant to waive his constitutional right to an appeal when this was a straight up plea to the Court. Why would a defendant knowingly and intelligently give up an extremely important constitutional right in exchange for absolutely nothing from the State for giving up those rights. Again, this is another example that the defendant's plea was not knowingly, intentionally or voluntarily made. This plea by the defendant was involuntary because it was entered into under mental weakness, mistake, surprise, and misapprehension, as well as fear and promises, and other circumstances that affected this defendant's rights. See Yesnes v. State, 440 So.2d 628, 634 (Fla. 1* DCA 1983) and Baker v. State, 408 So.2d 686 (Fla. 2“ DCA 1982). The standard required for the withdrawal of a plea before a sentence is entered is much lower than that after a sentence has been imposed. Florida Rule of Criminal Procedure 3.170(1) allows withdrawal of a plea only on the grounds listed in Florida Rule of Appellate Procedure 9.140(b). Those grounds include involuntariness of the plea. According to Lopez ». State, 536 So.2d 226 (Fla. 1988), once sentence has been imposed, to withdraw a plea a defendant must demonstrate a manifest injustice requiring correction. Scott State, 629 So.2d 888 (Fla. 4" DCA 1993). In State v. Partlow, 840 So.2d 1040 (Fla, 2003) at 1044, Florida’s Supreme Court stated that involuntariness of a plea is an example of a circumstance of manifest injustice requiring the Court to grant a Motion to Withdraw Plea. In this case, since this motion is being Page ‘aw Fim of Prank A Rabin, a PA. 59 Bilnare Way Sli 7, Col Cable, lida 9, T(0 85-soo F 8) 50201 Filed Lee County Clerk of Courts Page 4filed before the defendant is given a sentence, the standard is extremely low as stated by the Supreme Court in Partlow, trial courts are encouraged to liberally grant motions before sentencing. The grounds above stated are more than sufficient for this Court to grant this motion to withdraw the plea. If a defendant, deciding whether to enter a plea, relies upon erroneous advice from counsel, the plea is not a voluntary plea. See Ray » State, 480 So.2d 228 (Fla. 2d DCA 1985) and Tarpley v. State, 566 So.2d 914 (Fla, 2" DCA 1990), the Second District Court of Appeal held that misstatements by counsel concerning gain time rendered a plea involuntary. In Young v. State, 604 So.2d 925 (Fla. 2" DCA 1992), the Second District clearly stated that defense counsel’s assurances to the defendant that he knew or should have known were inaccurate, undermined voluntariness of a defendant's plea. For all of the above stated reasons, this Court should follow the Florida Supreme Court’s mandate that trial courts are encouraged to liberally gtant motions made before sentencing, and allow the defendants to withdraw the previously entered plea of guilty. Respectfully submitted, FRANK A. RUBINO, ESQUIRE Attomey for J. Patrick Buckley 550 Biltmore Way Suite 780 Coral Gables, FL 33134 305-858-5300 ‘aw Fim of Prank A Rabin, a PA. 59 Bilnare Way Sli 7, Col Cable, lida 9, T(0 85-soo F 8) 50201 Filed Lee County Clerk of Courts Page 5CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Motion to Withdraw Plea of Guilty was filed via electronic filing using the E-Filing Portal system with the Clerk of the Court which sent e-mail notification of such filing to all E-Filing participants in this case this 24" day of March, 2017. FRANK A. RUBINO, ESQUIRE Page ‘aw Fim of Prank A Rabin, a PA. 59 Bilnare Way Sli 7, Col Cable, lida 9, T(0 85-soo F 8) 50201 Filed Lee County Clerk of Courts Page 6