1 SUPREME COURT OF FLORIDA WILLIE ALBERT BOOKER ...

SUPREME COURT OF FLORIDA WILLIE ALBERT BOOKER, Petitioner,

v.

Case No. 00-2693 L.T. No. 1D00-01314

STATE OF FLORIDA, Respondent,

INITIAL BRIEF OF PETITIONER

SPIRO T. KYPREOS Attorney at Law 3 W. Garden Street, Suite 367 Pensacola, FL 32501 850-433-2185 Fla. Bar No. 135237 PRO BONO COUNSEL FOR PETITIONER 1

TABLE OF CONTENTS TABLE OF CONTENTS 2 TABLE OF CITATIONS 3 STATEMENT OF CASE AND FACTS

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SUMMARY OF ARGUMENT 7 7

ARGUMENT ISSUE WHETHER HEGGS PRECLUDES A DEFENDANT FROM CHALLENGING THE CONSTITUTIONAL VALIDITY OF HIS OR HER PLEA UNDER FLA. R. CR. P. 3.850 AND HAVING AN EVIDENTIARY HEARING ON THE CLAIM EVEN THOUGH THE MOTION STATES A PRIMA FACIE CASE THAT THE PLEA WAS NOT VOLUNTARY AND KNOWING.

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CONCLUSION

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CERTIFICATE OF SERVICE

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CERTIFICATE OF COMPLIANCE

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TABLE OF CITATIONS PAGES

CASES

Booker v. State, 771 So.2d 1187 (Fla. 1st DCA 2000)

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Davis v. State, 571 So.2d 118 (Fla. 5th DCA 1990) 5 Deering v. State, 710 So.2d 580 (Fla. 2nd DCA 1998)

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Garcia v. State, 736 So.2d 124 (Fla. 1999)

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Forbert v.State, 437 So.2d 1079 (Fla. 1983)

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Foster v. State, 2001 WL 1093106 (Fla. 3rd DCA 2001)

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Haynes v. State, 729 So.2d 498 (Fla. 1st DCA 1999)

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Heggs v. State, 759 So.2d 620 (Fla. 2000)

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Hingson v. State, 553 So.2d 768 (Fla. 1st DCA 1989)

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Koenig v. State, 597 So.2d 256 (Fla. 1992)

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Mortimer v. State, 770 So.2d 743 (Fla. 4th DCA 2000)

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Murphy v. State, 773 So.2d 1174 (Fla. 2d DCA 2000)

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Rose v. State, 774 So.2d 629 (Fla. 2000)

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Smith v. State, 741 So.2d 579 (Fla. 3d DCA 1999)

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State v. Thompson, 735 So.2d 482 (Fla. 1999)

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OTHER 6

Fla. R. Cr. P. 3.172

STATEMENT OF CASE AND FACTS On February 29, 2000, Petitioner, Willie Albert Booker, filed in the Circuit Court in for the First Judicial Circuit a motion for post conviction relief (R. 1). Neither a transcript of the plea or sentencing proceedings was attached to the motion. The motion alleged as grounds for relief that Booker was sentenced under the 1995 guidelines on a charge of second-degree murder for a term of 200 months state prison, that the 1995 guidelines were unconstitutional in violation of the single subject rule in Article III, Section 6, of the Florida Constitution, that he should have been sentenced under the 1994 guidelines (under which he calculated his sentencing range to been 137 to 228 months based upon total sentence points of 183 points), and that the circuit court cannot hold Defendant to his plea agreement, when the agreement was based on an unconstitutional guideline scoresheet. Defendant request that his sentence be vacated and he allowed to plea anew. (R. 7-8, emphasis supplied.) The motion prayed for all relief to which Booker may be entitled, including, but not limited to, an evidentiary hearing, appointment of counsel and resentencing under the 1994 sentencing guidelines (R. 12). The circuit court entered an order summarily denying the motion. The only documents attached to the order were copy of Booker’s 1995 guidelines scoresheet (R. 20), a plea agreement executed by Booker, his attorney and the prosecutor (R. 24), and a recalculated scoresheet using 1994 guidelines points (R. 27). Neither a transcript of the plea or sentencing proceedings was attached to the order. 4

The circuit court entered an order on March 9, 2000, summarily denying Booker’s pro se motion on the following grounds: Defendant pled nolo contendere to second degree murder with a firearm on September 17, 1997. The Court sentenced Defendant on June 24, 1998, to 200 months state prison. Defendant did not appeal his judgment or sentence. Defendant asserts that his sentence is illegal because the enacting legislation of the 1995 sentencing guidelines violates the single subject rule. Because Defendant’s sentence is not affected by the 1995 amendments, he lacks standing to raise this challenge. Defendant’s original sentencing guidelines called for a mandatory prison sentence between 234.9 and 391.5 months state prison. Defendant accepted a negotiated plea agreement for a guidelines sentence with a cap to 234.9 months state prison. Defendant’s scoresheet range under the 1994 sentencing guidelines requires a sentence between 141 and 235 months state prison. The sentence imposed is well within the guidelines and is within the cap to which Defendant agreed. Recalculation of Defendant’s scoresheet would have no effect on the sentence imposed. The order did not expressly or implicitly address Booker’s (R. 17-18.) claim that he should be allowed to withdraw his plea. No documents were attached to the order refuting that claim. Booker filed a motion for rehearing and as grounds therefor asserted that the circuit court had overlooked his claim that he should be allowed to withdraw his plea -- the gist of the claim being that the scoresheet was erroneous because it was calculated under the 1995 guidelines and that Booker would not have waived his right to a jury trial and entered into a plea agreement if the scoresheet had been correctly calculated under the 1994 guidelines (R. 30). The motion was denied (R. 33). Booker timely filed a notice of appeal to the First District on March 30, 2000 (R. 34). \ 5

The First District acknowledged that in his motion for postconviction relief Booker “sought to withdraw his plea of nolo contendere.” The First District characterized Booker’s claim as follows: According to the appellant’s timely sworn 3.850 motion, he pled nolo contendere to seconddegree murder in exchange for a sentence capped at the bottom of his 1995 guidelines scoresheet of 234.9 months. the trial court sentenced the appellant to 200 months in prison pursuant to this agreement. The appellant further alleged that his sentence is illegal because the 1995 sentencing guidelines have been declared unconstitutional in Heggs v. State, 759 So.2d 620 (Fla. 2000). In support, he alleged that his offense was committed on August 17, 1996, which is within the window established in Trapp v. State, 760 So.2d 924 (Fla. 2000). He alleged that since his sentence was imposed based on the unconstitutional 1995 scoresheet, he can not be held to his plea agreement where the cap under the 1994 guidelines would have only been 141 months in prison. Thus, the First District recognized that Booker’s Rule 3.850 motion requested the trial judge to permit him to withdraw his plea because it was influenced by his misunderstanding or mistaken belief that the low end of a guidelines sentence for second-degree murder was 234.9 months rather than 141 months and that he would not otherwise have entered the plea. The First

District also acknowledged that: Ordinarily, the appellant’s allegations of mistake and misinformation would be sufficient to state a prima facie case for relief. Nevertheless, the First District affirmed the circuit court’s summary denial of Booker’s Rule 3.850 motion on the grounds that Heggs “narrowed the class 6

of inmates entitled to resentencing by imposing a specific ‘prejudice’ requirement” and that Booker was not prejudiced because his 200 months sentence could have been imposed under the 1994 sentencing guidelines. SUMMARY OF ARGUMENT Booker’s motion stated a prima facie case for postconviction relief on the ground that his plea was not voluntary and knowing. The circuit court order summarily denying his motion contained no attachments refuting his claim. Therefore, Booker was entitled to an evidentiary hearing on his claim and the First District should have reversed the circuit court’s order and remanded the case for an evidentiary hearing. ARGUMENT ISSUE: WHETHER HEGGS PRECLUDES A DEFENDANT FROM CHALLENGING THE CONSTITUTIONAL VALIDITY OF HIS OR HER PLEA UNDER FLA. R. CR. P. 3.850 AND HAVING AN EVIDENTIARY HEARING ON THE CLAIM EVEN THOUGH THE MOTION STATES A PRIMA FACIE CASE THAT THE PLEA WAS NOT VOLUNTARY AND KNOWING. The standard of review of an order summarily denying a motion for postconviction relief under Fla. R. Cr. P. 3.850 is whether the record conclusively shows that the appellant is entitled to no relief. Garcia v. State, 736 So.2d 1224 (Fla. 1999). In such a case, “this Court must accept [appellant’s] factual allegations as true to the extent they are not refuted by the record,” Rose v. State, 774 So.2d 629, 632 (Fla. 2000) [Citing Gaskin v. State, 737 So.2d 509, 516 (Fla. 1999); Valle v. State, 705 So.2d 1331 (Fla. 1997); and Lightbourne v. Dugger, 549 So 1364, 1365 (Fla. 1989)], and “determine from that premise whether the [appellant] has presented a prima facie claim for relief,” Haynes v. State, 729 So.2d 498 (Fla. 1st DCA 1999). Absent a timely motion to withdraw the plea, the issue of voluntariness may be raised in the trial court in a motion for postconviction relief if the issue has not been previously raised and ruled upon.” State v. Thompson, 735 So.2d 482 (Fla. 1999). See also, Davis v. State, 571 So.2d 118 (Fla. 5th DCA 1990) (State conceded that a claim that a plea was entered involuntarily is a valid basis 7

for relief under Rule 3.850). “Florida Rule of Criminal Procedure 3.172 governs the taking of pleas in criminal cases. This rule provides basic procedures designed to ensure that a defendant’s rights are fully protected when he enters a plea to a criminal charge,” Koenig v. State, 597 So.2d 256, 258 (Fla. 1992). To that end, the rule requires a trial judge during the plea colloquy to determine that the defendant understands “the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.” Fla. R. Cr. P. 3.172(c)(1). “It is a well established principle of law that a defendant should be allowed to withdraw a plea of guilty where the plea was based upon a misunderstanding or misapprehension of acts considered by the defendant in making the plea.” Forbert v. State, 437 So.2d 1079, 1081 (Fla. 1983). Thus, prior to Heggs v. State, 759 So.2d 620 (Fla. 2000), the courts recognized that a defendant who claimed that he or she was induced by an incorrect guidelines scoresheet to enter a plea and requested leave to withdraw his or her plea stated a prima facie case for postconviction relief and was entitled to an evidentiary hearing on the claim. See Smith v. State, 741 So.2d 579 (Fla. 3rd DCA 1999); Deering v. State, 710 So.2d 580 (Fla. 2nd DCA 1998); Hingson v. State, 553 So.2d 768 (Fla. 1st DCA 1989). The First District held below that although Booker’s postconviction motion seeking to vacate his conviction and sentence and withdraw his plea stated a prima facie case for relief under Forbert, the First District determined that this Court in Heggs narrowed the class of inmates entitled to resentencing by imposing a specific “prejudice” requirement: [O]nly those persons adversely affected by the amendments made by chapter 95-184 may rely on our decision here to obtain relief. Stated another way, in the sentencing guidelines context, we determine that if a person’s sentence imposed under the 1995 guidelines could have been imposed under the 1994 guidelines (without a departure), then that 8

person hall not be entitled to relief under our decision here. Id. at 627 Booker v. State, 771 So.2d 1187, 1188 (Fla. 1st DCA 2000). See also Foster v. State, 2001 WL 1093106 (Fla. 3rd DCA 2001). In a “sentencing guidelines context” Heggs makes sense because Rule 3.850 cannot is not a vehicle for challenging a legal sentence -- and a sentence imposed within the legal range of a 1994 guidelines scoresheet is a legal sentence even if arrived under the auspices of an unconstitutional 1995 guidelines scoresheet. Heggs does not make sense when the challenge is to the legitimacy of the plea, not the length of sentence imposed, and the challenge is raised in a constitutional context, to wit: whether plea was voluntary and knowing as required by the due process clause of the Fourteenth Amendment, U.S. Const., and Article I, Section 9, Fla. Const. In Murphy v. State, 773 So.2d 1174 (Fla. 2nd DCA 2000), the Second District unanimously held in an en banc opinion that while the appellant was not entitled to be resentenced under Heggs because his sentence fell within the 1994 guidelines, affirmance of the order denying such relief was without prejudice to his “filing a timely and legally sufficient motion under rule 3.850 challenging the voluntary and intelligent nature of his plea.” Id. See also Mortimer v. State, 770 So.2d 743 (Fla. 4th DCA 2000). Booker submits that the Second and Fourth Districts are right. CONCLUSION The First District’s decision must be reversed and the case remanded to the First District with appropriate instructions.

SPIRO T. KYPREOS Pro Bono Counsel for Appellant 3 W. Garden Street, Suite 367 Pensacola, FL 32501 850-433-2185 Fla. Bar No. 135237 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was furnished to James W. Rogers, Senior AAG, Office of the Attorney General, The Capitol, 9

Tallahassee, FL 32399-1050 by U.S. Mail this ____ day of October, 2001.

SPIRO T. KYPREOS Pro Bono Attorney for Appellant CERTIFICATE OF COMPLIANCE I CERTIFY that this brief complies with the font requirements of Fla. R. App. P. 9.210.

SPIRO T. KYPREOS Pro Bono Attorney for Appellant

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