AND WE WILL TAKE THE CASE
FOR CONSIDERATION.
THANK YOU VERY MUCH.
WE WILL MOVE TO OUR SECOND
CASE.
BOLWARE VERSUS STATE OF
FLORIDA.
92 MAY IT PLEASE THE COURT
I'M JEFF WHITTON FROM PANAMA
CITY I'M HERE ON BEHALF OF
DEMELLO BOLWARE.
THERE ARE NO FACTS TO
BELABOR IN THIS CASE.
>> WELL, WHAT WAS THE --
WHAT WAS THE SENTENCE?
HE PLED NO LOW?
>> HE PLED NO LOW RECEIVED
$253 COST IN FINES, SUBJECT
TO 15 DAYS IF HE DID WANT
PAY IT, HE DIDN'T PAY IT.
HE WAS ARRESTED BRIEFLY.
AND WAS --
>> SO THE ARGUMENT IS ALL HE
THOUGHT WAS GOING TO HAPPEN
WAS HE WAS GOING TO HAVE
THIS FINE.
HE DIDN'T KNOW HE WAS GOING
TO HAVE -- HIS LICENSE WAS
ALREADY SUSPENDED HE DIDN'T
KNOW HIS LICENSE WOULD
CONTINUE TO BE SUSPENDED?
>> THE SUSPENSION WAS
INSURANCE FOR SOMETHING --
FAILURE TO PAY INSURANCE OR
SOMETHING OF THAT NATURE.
HE HAD NO IDEA THAT THERE
WAS A FIVE-YEAR AUTOMATIC
SUSPENSION COMING AS A
RESULT OF THE --
>> WELL HIS LICENSE HAD BEEN
SUSPENDED HOW MANY TIMES
BEFORE?
>> I DO NOT KNOW, YOUR
HONOR.
>> WELL, THIS -- HE WAS A
HABITUAL.
>> YES, HE WAS A HABITUAL
TRAFFIC OFFENDER I DON'T
KNOW THAT THERE HAD BEEN
SUSPENSIONS BEFORE.
IT MAY HAVE BEEN A COUPLE OF
PREVIOUS SUSPENSIONS,
DRIVING WITH SUSPENDED
LICENSES.
THE MAN IS NOT A GOOD -- DID
NOT HAVE A GOOD DRIVING
RECORD UP TO THIS TIME.
I MEAN, THERE'S NO QUESTION
ABOUT THAT.
>> REFRESH MY MEMORY BECAUSE
LOOKING AT ALL THESE VARIOUS
STATUTES WITH REFERENCE TO
DRIVER'S LICENSE SUSPENSION
AND, YOU KNOW, NAT DOING IT
WITH TEENAGERS, WITH
EVERYBODY HERE, IS THIS THE
STATUTE -- DID YOUR -- FALL
UNDER THE ONE WHERE THE
PROVISION ACTUALLY SAYS THAT
THE COURT SHALL DIRECT THE
DEPARTMENT TO SUSPEND THE
LICENSE?
IS THAT THE STATUTE THAT WAS
INVOLVED IN YOUR CASE OR IS
IT ANOTHER ONE --
>> IT'S ANOTHER ONE.
IT IS A HABITUAL TRAFFIC
OFFENDER STATUTES THAT SAYS
UPON NOTIFICATION OF THE
OFFENSE OF SUSPENSION THE
DEPARTMENT SHALL SUSPEND OR
REVOKE FOR FIVE YEARS
SUBJECT TO HAVING PETITION
FOR REINSTATEMENT.
>> WHO'S RESPONSIBILITY IS
IT TO NOTIFY --
>> THE CLERK NOTIFIES THE
DEPARTMENT.
>> THE CLERK OF THE COURT?
>> THE CLERK OF THE COURT
AUTOMATICALLY NOTIFIES THE
DEPARTMENT OF --
>> SHOULD WE DRAW A
DISTINCTION MOJEST THESE
PROVISIONS -- AMONGSTS THESE
PROVISIONS, I READ YOU ONE
THAT VERY EXPRESSLY SAYS
THAT THE COURT, YOU KNOW,
SHALL DIRECT, OKAY, THE
DEPARTMENT TO SUSPEND THE
LICENSE.
NOW THAT, THAT ONE --
>> THERE THERE'S A NUMBER.
THEY'VE COVERED THE
WATERFRONT.
>> SHOULD WE DECIDE THIS
CASE ON THE BASIS OF THESE
VARYING PROVISIONS AND SAY,
WELL, WHERE IT SAYS THAT THE
COURT SHALL ACTUALLY DIRECT
THE DEPARTMENT TO DO IT,
THEN MAYBE WE OUGHT TO
REQUIRE THE COURT TO TELL
THE DEFENDANT BEFORE HE
PLEASE.
WHERE IT'S ONE WHERE WHEN
THE DEPARTMENT FINDS OUT
THAT SOMETHING IS HAPPENED,
THEN STARTS ITS OWN
PROCEEDINGS, MAYBE WE SHOULD
SAY, WELL, NOW, THE IN THAT
INSTANCE, THE COURT
SHOULDN'T BE INVOLVED?
>> WELL, I DON'T THINK SO,
YOUR HONOR, AND THE REASON
FOR THAT IS THIS, IN THESE
RELATIVELY MINOR TRAFFIC
OFFENSES, AND THERE ARE SOME
BEFORE YOU, SOME RELATED
CASES, THAT ARE SERIOUS
TRAFFIC OFFENSES, FELONY
TRAFFIC OFFENSE SAID, --
OFFENSES, NOT THIS CASE, THE
ISSUE REALLY IS WHAT DOES
THE DEFENDANT WHAT IS HE
TOLD?
WHAT DOES HE UNDERSTAND
ABILITY ABOUT THE SENTENCE,
THE ACTUAL CONSEQUENCES OF
HIS PLEA?
AND I DON'T THINK FROM THE
STANDPOINT OF THE DEFENDANT
IT MATTERS TO HIM WHICH
AGENCY SUSPENDS HIS LICENSE,
WHETHER THE COURT DIRECTS IT,
WHETHER THE COURT DOES IT
ITSELF, WHETHER THE COURT
TELLS THE DEPARTMENT TO,
WELL THE DEPARTMENT DOES IT
AUTOMATICALLY.
THE POINT IS, THE DEFENDANT
TO UNDERSTAND HIS PLEA HAS
TO BE TOLD SOMETHING
REALISTIC ABOUT WHAT HIS
LIFE CONSEQUENCES ARE GOING
TO BE?
>> BUT YOU WOULD AGREE THAT
THIS COURT, SLAUNG AGO AS
THE CITY OF GAINESVILLE
CASE.
>> RIGHT.
>> HAS -- IT'S MADE A
DIFFERENCE TO THIS COURT
INSOFAR AS IT HAS DETERMINED
THAT THE SPENSION OF THE
DRIVER'S LICENSE IS NOT A
PUNISHMENT.
>> THE COURT HAS USE SAID
THAT PHRASE NOT A PUNISHMENT
IN JURISDICTIONAL CONTEXT,
YES, JUST GOING BACK INTO
THE ZBIFRTS.
>> RIGHT.
>> AND --
>> NOBODY.
>> REPEATED IT IN THE 70s.
>> 70s, 80s, YES, AND IT'S A
NUMBER OF CIRCUMSTANCES AND
WE'RE NOT ASKING THE COURT
TO RECEDE IN ANY SENSE FROM
THE SMITH CASE THAT SAYS THE
LEGISLATURE CAN DIRECT A
DRIVER'S LICENSE TO BE
REVOKED OR FROM BOYD OR ANY
OF THE OTHERS THAT SAY THE
TRIAL COURTS DON'T HAVE THE
AUTHORITY TO TELL THE
DEPARTMENT TO CHANGE ITS
REVOCATIONS IN CRIMINAL
SENTENCING PROCEEDINGS.
ALL I'M SAYING IS THAT THIS
IS A VERY REAL CONSEQUENCE
OF THE PLEA TO THIS MAN.
>> BUT WE HAVE -- WE'VE NOT
MADE OUR DECISIONS ON WHAT
HAS TO BE PART OF THE PLEA
COLLOQUY ON THE BASIS OF
REAL CONSEQUENCES.
WE HAVE MADE IT ON THE BASIS
OF WHETHER -- OF A CRITERIA
THAT SAYS THAT IT IS THE
PUNISH: I MEAN WE USE THAT
LANGUAGE IN MAGER AND
PARLOW.
>> RIGHT, YOU USE THE WORD
PUNISHMENT.
RIGHT.
BUT YOU DON'T DEFINE THE
WORD PUNISHMENT IN THAT
SENSE, AND WHAT I AM
SUGGESTING TO THE COURT IS
THAT THIS IS PUNISHMENT.
THIS IS PUNISHMENT TO THE
ORDINARY CITIZEN.
>> BUT WHEN A LAWYER IS
CONVICTED OF A FELONY,.
>> OKAY.
>> THEN HES ARE
AUTOMATICALLY SUSPENDED
UNDER OUR SCHEME OF
RELULATING LAWYERS, AND SO
ARE WE GOING TO REQUIRE
TRIAL JUDGES NOW THAT WHEN
THE DEFENDANT IS A LAWYER TO
SAY, WELL, THEN PLEAING
NOLOW OR GUILTY TO THIS, DO
YOU REALIZE THAT YOU'RE
PRIVILEGED TO PRACTICE LAW
IS GOING TO BE AUTOMATICALLY
SUSPENDED?
WE DON'T REQUIRE THAT.
>> YOU HAVEN'T REQUIRED IT.
SO WHY THE PRIVILEGE OF
DRIVING AN AUTOMOBILE ON THE
HIGHWAYS OF FLORIDA IS --
HAS BEEN CHARACTERIZED AS A
PRIVILEGE JUST AS THE
PRIVILEGE OF PRACTICING LAW,
SO WHY SHOULDN'T WE JUST
DRAW AN ANALOGY THERE?
>> WELL, THE PROBLEM THAT I
SEE WITH THAT IS, OF COURSE,,
OF COURSE, LAWYERS ARE A
FAIRLY SMALL SUBSET AND
PERHAPS SHOULD UNDERSTAND
THE CONSEQUENCES OF THAT
ACTION.
THE LAWYERS GENERALLY OUGHT
TO HAVE GOOD LEGAL ADVICE,
AND IF THE LAWYER THOUGHT
SOMEHOW HE WAS GOING TO BE
CONVICTED OF A FELONY, LEADS
TO A FELONY CONTINUE TO
PRACTICE, MAYBE HE SHOULD'S
BEEN WARNED BY HIS COUNSEL
THAT HE SHOULD -- THAT THIS
WAS GOING TO FOLLOW AS AN
AUTOMATIC SANCTION, AND --
>> THIS IS -- LET ME TRY TO
GET THIS PROCEDURAL POSTURE
OF THIS CASE.
FIRST OF ALL, ARE YOU
ADVOCATING THAT THIS COURT
ADOPT A RULE OF THAT THAT
SAYS A TRIAL JUDGE IN EVERY
CASE WHERE THE LICENSE
SUSPENSION IS MANDATORY
SHALL ADVISE THE DEFENDANT
OF THAT?
IS THAT, THAT YOU'RE --
WOULD PUT THAT OBLIGATION ON
THE JUDGE OR ARE THE WAY, AT
LEAST THE LOWER COURT
REFERENCES WHAT THE CIRCUIT
COURT SAID.
IT SAID THAT THE DEFENSE
COUNSEL WAS REQUIRED TO WARN
THE DEFENDANT OF THE
CONSEQUENCE PRIOR TO THE
ENTRY OF THE PLEA.
IN OTHER WORDS, WHAT I'M
HAVING TROUBLE WITH, AND
I'VE -- I KNOW WE SAID IN
MAJOR IT HAD TO BE A
PUNISHMENT BUT I'M TRYING TO
THINK OF A DEFENSE LAWYER
DEFENDING THIS GUY YOU CAN
PLEAD NOLO TO DRIVING WHILE
YOUR LICENSE IS SUSPENDED OR
REVOKED GET A $250 FINE SO I
SUGGEST YOU PLEAD TO IT.
IS THAT WHAT SUPPOSEDLY
HAPPENED IN THIS CASE
CEPHAL?
NAT IS EXACTLY HAPPENEN.
>> WHY DIDN'T HE CLAIM FOR
INEFFECTIVE ASSISTANCE OF
COUNSEL.
>> HE DID.
THAT'S WHY WE'RE HERE.
>> SO NOT AS A DIRECT MOTION
TO WITHDRAW THE PLEA?
>> NO.
THIS WAS FILED AS A 3.850
ACTION WHEN HE GOT THE
NOTICE OF SUSPENSION ABOUT
SIX MONTHS LATER.
AND JUDGE WELCH IN THE
COUNTY COURT HELD A EFFDENGSRY
HEARING, AND FOUND THAT --
AND THE ONLY EVIDENCE AT THE
HEARING WAS MR. BOLWORTH
SAYING MY --
>> MY LAWYER DIDN'T TELL
HIM.
>> MY PUBLIC DEFENDER NEVER
MENTIONED THAT I MIGHT LOSE
MY LICENSE OVER THIS.
THE COUNTY COURT FOUND THAT
WASN'T GOOD ENOUGH.
AND THAT HE DENIED THE
MOTION TO WITHDRAW THE PLEA.
AND THAT'S WHEN I WAS
APPOINTED TO TAKE AN APPEAL
TO THE CIRCUIT COURT.
JUDGE -- THE CIRCUIT JUDGE,
BAYH THEN THE PREAUNT AI
CASE HAD COME OUT OF THE
FOURTH DIRECT.
THE CIRCUIT JUDGE FOLLOWED
THE CASE.
YOU GOT TO TELL HIM THIS IS
WHAT THE CASE WAS FOR.
>> YOU WOULD THINK AS A
DEFENSE LAWYER CAN YOU
IMAGINE A DEFENSE LAWYER
THAT WOULDN'T DISCUSS THE
LOSE AGLICENSE WITH A
CLIENT?
>> I DON'T PRACTICE IN
TRAFFIC COURT A LOT, BUT I
CANNOT VISUALIZE GOING TO
TRAFFIC COURT AND NOT
TALKING ABOUT LICENSE
CONSEQUENCES.
>> IT SEEMS TO ME --
>>.
>> THE DRIVING RECORD IS
RIGHT THERE IN FILE.
IT'S RUNNING EVERYTHING
TRAFFIC COURT CASE IN BAY
COUNTY.
>> I CAN'T IMAGINE WHAT A
JUDGE IN COUNTY COURT IS
GOING TO DISCUSS WITH A --
IN TERMS OF VOLUNTARY PLEANE
TRAFFIC OFFENSE OTHER THAN,
SINCE THEY'RE NOT GOING TO
JAIL, OTHER THAN THEIR
LICENSE.
>> IT'S VERY ABBREVIATED
PROCESS AND THEY RELY ON
THEIR PUBLIC, THE COUNSEL.
>> THAT IS A POLICY, IN
OTHER WORDS, THAT OBLIGATION
SHOULDN'T BE PLACED ON THE
TRIAL JUDGE.
BUT IT SHOULD BE PLACED --
DO YOU THINK THAT THERE CAN
BE BE A DISTINCTION DRAWN
BETWEEN WHAT A DEFENSE
LAWYER HAS AN OBLIGATION TO
DO AND WHAT A -- AS A MATTER
OF QAUMITANT COUNSEL AND
WHAT A TRIAL JUDGE HAS A
RESPONSIBILITY TO DO?
>> VERY MUCH SO.
>> SO YOU ARE NOT ADVOCATING
FOR THIS BEING PART OF A
PLEA COLLOQUY, NOR AM I
ASKING YOU TO CHANGE THE
CRIMINAL RULES.
I SIMPLY COMPETENT TRIAL
COUNCIL IN TRAFFIC COURT
NEEDS TO BE THINKING ABOUT
DRIV DRIVER'S LICENSES.
THE FIRST THING THAT A
TRAFFIC DEFENDANT ASKS WHEN
THEY WALK IN, USUALLY, IS,
WHAT'S GOING TO HAPPEN TO MY
LICENSE.
BECAUSE YOU HAVE TO HAVE A
LICENSE TO FUNCTION IN THIS
STATE REALLY.
>> SO THAT WHAT WAS HE PLED
BELOW HE ASKED HIS ATTORNEY
--
>> THIS IS NOT A MISADVICE
CASE.
>> THIS IS NOT MISADVICE
CASE.
THERE ARE SOME PENDING
BEFORE THE COURT THAT ARE
MISADVICE CASE.
THIS IS NOT A MISADVICE
CASE.
HE JUST SIMPLY NEVER
MENTIONED IT.
>> AND IN THIS CASE, THE
DETERMINATION OF WHETHER
THIS PERSON WAS A HABITUAL
OFFENDER OR NOT, WAS THAT
MADE BY THE COURT OR WAS
THAT MADE BY THE DEPARTMENT?
>> THE DEPARTMENT.
HE WAS A HABITUAL TRAFFIC
OCHEDER IN CHAPTER 322.
>> SO THAT WAS A
DETERMININATION NOT
NECESSARY TO BE MADE DURING
THE COURT.
>> JUDGE WELCH NEVER TALKED
ABOUT THAT IN COURT.
>> JUSTICE CANTERO HAS A
QUESTION.
>> I'M SORRY.
>> THE COURTS HAVE HELD
DEPORTATION IS A COLLATERAL
CONSEQUENCE.
TERMINATION OF PARENTAL
RIGHTS IS COLLATERAL
CONSEQUENCE.
SEXUAL OFFENDER REGISTRATION
IS A COLLATERAL CONSEQUENCE.
WOULDN'T IT BE -- WHEN THOSE
THINGS ARE COLLATERAL
CONSEQUENCES TO SAY THAT
REVOCATION OF A DRIVER'S
LICENSE, WHICH TO ME WHICH
FRANKLY IS NOT AS IMPORTANT
OF TERMINATION OF PURINTAL
RIGHTS IS A DIRECT
CONSEQUENCE?
SHOULDN'T THERE BE SOME KIND
OF UNIFORMTY IN LAW OF WHAT
IS A DIRECT AND COLLATERAL
CONSEQUENCE.
>> YOUR HONOR, I BELIEVE
MOST OF THOSE TURN ON THE
QUESTION OF HOW AUTOMATIC
THE CONSEQUENCES ARE.
IS THERE DISCRETION IN
ANOTHER AGENCY,
IMMIGRATIONORY SOMETHING OF
THAT NATURE THAT PREVENTS
THEM FROM BEING DIRECT
CONSEQUENCE OF THE PLEA.
THERE IS NO DISCRETION IN
THE DEPARTMENT IN THIS CASE.
IT SIMPLY WILL HAPPENS.
YOU'RE NOT GOING TO GO
BEFORE A IMMIGRATION JUDGE,
NOT GOING TO GO BEFORE A
FAMILY COURT JUDGE AND TALK
ABOUT --
>> IN PART LOW IT WAS PRETTY
AUTOMATIC TOO.
THERE WAS NO DISCRETION.
>> YES.
REGISTRATION I THINK DOESN'T
CARRY THAT KIND OF SANCTION
ALTHOUGH GIVEN CURRENT
ZONING LAWS THAT MAY BE
SOMETHING THAT SOME OTHER
LAWYER BRINGS.
>> I AGREE WITH YOU THAT --
BUT ON THE OTHER HAND,
DIDN'T WE SAY THAT IT WAS --
IT'S NOT THAT IT WAS NOT AS
IMPORTANT BUT WE SAID THAT
IT WAS NOT PUNISHMENT AT
ALL.
>> RIGHT.
>> SO WAS THIS CASE TURN ON
WHETHER REVOCATION IS A
PUNISHMENT OR WHETHER IT'S
ANTRATIVE PROCEEDING?
>> MY POINT WITH THIS IS
THAT WE HAVE GOTTEN PERHAPS
AWAY FROM COPPEN
UNDERSTANDING OF THE WORD
PUNISHMENT WHEN WE START
MAKE!!ING THESE DISTRINGSS --
DISTINCTIONS TO THE PERSON
THAT IS DOING -- PLEADING TO
RELATIVELY MINOR TRAFFIC
OFFENSES IT IS VERY A PART
OF THE SANGTION A PART OF
THE PUNISHMENT.
AND IF WE -- WE DOENT DON'T
NEED TO DIVORCE THE COURT
FROM THE COURT SYSTEM FROM
COMMON UNDERSTANDING SO THAT
THESE PEOPLE KNOW --
>> SHOULDN'T OUR EMPHASIS
HERE THOUGH BE ON THE
COMPETENCY OF THE LAWYER IN
TERMS OF HAVING KNOWLEDGE OF
THE LAW AT THE TIME THAT THE
LAWYER IS COUNSELING HIS
CLIENT IN A PARTICULAR CASE?
>> I THINK SO, YOUR HONOR, I
MEAN I CANNOT IMAGINE NOT.
>> AS OPPOSED TO FOCUSING SO
MUCH ON THE ISSUE OF, OF
WHAT OCCURS DURING A PLEA
COLLOQUY, AND, AND, THOSE
MATTERS IT'S STRICTLY AN
ISSUE THAT YOU'VE PRESENTED
AS TO THE COMPETENCY OF A
LAWYER, IS THAT A FACT?
THAT IS CORRECT.
BUT THAT IS NOT WHAT THE
DISTRICT COURTS SAID.
THE DISTRICT COURTS SAID
THIS WAS A MATTER OF WHETHER
THE PLEA WAS VALITARY.
AND IN -- AND THE COUNTY
COURT DID NOT DEAL WITH THIS
AS A MATTER OF INEFFECTIVE
ASSISTANCE OF COUNSEL.
I RECOGNIZE JUDGE HESS THAT
THE CIRCUIT COURT LEVEL MADE
A STATEMENT ABOUT THAT BUT
THAT'S NOT WHAT THE COUNTY
COURT DID --
>> THE ENTIRE RECORD BEFORE
THE COUNTY COURT AND BEFORE
THE CIRCUIT COURT SHOULD
HAVE BEEN IN THE RECORD FROM
THE DISTRICT COURT TO YOU
APPENDED TO THE ANSWER
BRIEF.
>> WHAT IS THE MOTION --
WHAT WAS THE MOTION?
A MOTION FOR POST-CONVICTION
RELEASED BASED ON
INEFFECTIVE ASSISTANCE?
>> YES, YOUR HONOR,
UNQUESTIONABLY WAS THAT AND
THERE WAS A BRIEF HEARING ON
IT.
>> DID YOU -- AND SO YOU
FILED?
>> NO, I WAS NOT IN THE CASE
AT THAT TIME.
BUT --
>> AND, AND, IN FAIRNESS, I
SEE THAT THE DISTRICT --
THAT THE COUNTY COURT DID
SAY THAT THERE WAS NO DUTY
IMPOSED UPON DEFENDANT'S
TRIAL COUNSEL TO WARN OF
CONSEQUENTIAL
CONSEQUENCESISM.
BUT WAS DEALING WITH THIS ON
THE BASIS OF WHETHER THE
PLEA WAS VOLUNTARY OR NOT.
>> RIGHT.
I'M INTO MY REBUTTAL TIME.
I DO WANT TO MAKE ONE
ADDITIONAL POINT THOUGH.
WE HAVE NOT ARGUED THE
JURISDICTIONAL ISSUE IN THE
DCA.
I THINK IF THIS COURT COULD
VERY EASILY HOWEVER FIND
THAT NO DECISION OF THIS
COURT HAS DIRECTLY ADDRESSED
THE ISSUE BEFORE THAT THE
DCA SEE THAT ITS
JURISDICTION WHEN IT --
REVIEW OF THIS CASE, AND
SAID THAT THE TRIAL JUDGE
SHOULD NOT HAVE FOLLOWED --
I DON'T MEAN TO WAIVE THAT
ARGUMENT.
I'M NOT WASING IT TODAY.
I JUST RELY ON THE BRIEF IN
THAT REGARD.
>> OKAY, THANK YOU.
YOU'VE RESERVED SOME TIME
FOR YOUR REBUTTAL.
MR. HILLS?
>>> MAY IT PLEASE THE COURT,
EXCUSE ME.
MY NAME IS EDWARD HILL AND I
WAS APPEARING ON BEHALF OF
THE STATE ATTORNEY GENERAL
OF THE STATE OF FLORIDA.
>> THE STATE'S POSITION ON
THIS HAS BEEN PRETTY
CONSISTENT, YOUR HONOR, THAT
THIS IS NOT PUNISHMENT.
WHAT ABOUT THE --
>> WHAT ABOUT THE ISSUE
THOUGH THE WAY THAT THIS
THING HAS COME UP, THAT IS
THAT THIS HAS COME UP IN A
POST-CONVICTION COMPETENCY
OF COUNSEL --
>> WELL, YOUR HONOR --
>> ISN'T THAT REALLY A
SEPARATE ISSUE AS OPPOSED TO
ENDING UP, YOU KNOW,
PHRASING THE ISSUE IN TERMS
OF WHAT THE TRIAL JUDGE HAS
TO TELL A DEFENDANT BEFORE
HE CAN ACCEPT A GUILTY OR A
NOLO PLEA?
>> WELL,.
>> YOU'RE RIGHT JUSTICE
ANSTEAD ABOUT WHO HAS TO
PROVIDE THE ADVICE --
>> WELL, IT'S BIGGER THAN
THAT.
THE FRAMEWORK IS MUCH LARGER
IN TERMS OF THE EXAMINING
WHETHER COUNSEL ACTED
EFFECTIVELY IN REPRESENTING
HIS CLIENT.
THAT'S A MUCH BROADER
QUESTION.
THAN THE NARROW QUESTION OF
WHAT A TRIAL JUDGE IS
OBLIGATED TO INFORM A
DEFENDANT WHEN TAKE AGPLEA.
>> THERE'S'S A BROADER
QUESTIONT BUT THEY
INTERTWINE AND THEY
INTERTWINE IN THE ARENA OF
DEFICIENT PERFORMANCE AND
THIS COURT HAS BASICALLY
HELD PREVIOUSLY THAT COUNSEL
IS NOT DEFICIENT IN NOT
ADVISOR A CLIENT WARD TO
SOMETHING THAT IS NOT A,
THAT IS NOT A DIRECT
CONSEQUENCE OF THE PLEA.
>> ISN'T COUNSEL CHARGED
WITH KNOWING THE LAW WHEN HE
REPRESENTS SOMEBODY?
IN A CIRCUMSTANCE LIKE THIS
AND THEN IF, IF THE
REVOCATION OF THE LICENSE IS
AUTOMATIC, WHY SHOULDN'T
COUNSEL BE CHARGED WITH
KNOWING THAT?
AND TELLING HIS CLIENT ABOUT
THAT BEFORE THE CLIENT
PLEASE?
IF IT'S AUTOMATIC, I MEAN,
WHERE YOU KNOW,.
>> YOUR HONOR, COUNSEL DOES
HAVE A DUTY TO ADVISE HIS
CLIENT AS TO WHAT TO DO.
BUT JUST IN THE SAME WAY
THAT WE DON'T REQUIRE
COUNSEL TO ADVISE HIS CLIENT
WHEN HE IS IN FACT GOING TO
BE CONVICTED OF A FELONY
THAT HE LOSE LOSES HIS RIGHT
TO VOTE, HE LOSES HIS OTHER
CONSTITUTIONAL RIGHTS TO
BARE ARMS TOO, HOLD PUBLIC
OFFICE, --
>> WAIT, WAIT, WAIT, WAIT A
SECOND.
LET'S GET TO REALITY HERE.
WE'RE IN TRAFFIC COURT.
THERE IS A LICENSE.
HE'S DRIVING WITHOUT --
>> HE'S DRIVE OGAN REVOKED
LICENSE.
SO HIS LICENSE IS ALREADY
REVOKED OR SUSPENDED AND HE
KNOWS HE'S DRIVING ON A
REVOKED OR SUSPENDED
LICENSISM.
>> AND HE PLEASE NOLO AND
WHAT IS THE PUNISHMENT HE
CAN RECEIVE?
>> WELL TDEPENDS ON NUMBER
OF TIMES IN HIS CIRCUMSTANCE
HE EASILY WOULD'VE BEEN
INCARCERATED FOR UP TO I
BELIEVE A YEAR IN COUNTY
JAIL.
>> AND SO HE'S TOLD THOUGH
THIS IS A GOOD DEAL FOR HIM
PRESUMABLY BECAUSE THE ONLY
PUNISHMENT HE'S GOING TO GET
IS NO JAIL TIME.
>> HE'S TOLD THERE WILL BE
NO JAIL TIME UNLESS HE
DOESN'T PAY.
>> BUT -- AND HIS PUNISHMENT
IS HE WILL PAY HOW MUCH?
>> I THINK IT WAS $275 PLUS
MAYBE COURT FINES.
>> AND WE ARE SAYING THAT A
LAWYER IN THE STATE OF
FLORIDA ADVISING SOMEBODY OF
A CONSEQUENCE OF A TRAFFIC
OFFENSE COULD GET AWAY WITH
SAYING, LISTEN, THIS IS A
GREAT DEAL FOR YOU.
YOU'LL ONLY HAVE TO PAY $250
WHEN IN FACT THE VERY NEXT
MONTH HE WILL HAVE AN
AUTOMATIC SUSPENSION OF HIS
DRIVER'S LICENSE FOR FIVE
YEARS?
>> YOUR HONOR, HIS -- HIS --
>> DOES THAT --, I MEAN,
LAST CASE WE TALKED ABOUT
WHAT THE PUBLIC THINKS.
DOES THIS SEEM TO YOU LIKE A
-- AND LISTEN, I'VE BEEN IN
DISSENT ON ONE OF THESE BUT
THIS ONE SEEMS LIKE WE ARE
GOING FAR AFIELD ABOUT WHAT
A DEFENDANT WOULD WANT TO
KNOW.
DO YOU NOT SEE THAT AS BEING
DIFFERENT THAN THE OTHER
CASES WE'VE DECIDED?
>> ACTUALLY, NO YOUR HONOR,
I DON'T.
I THINK THAT THE LEGISLATURE
HAS SET OUT A STRUCTURE THAT,
THAT A LICENSE RECHBICATION
IS A CIVIL ADMINISTRATIVE
ACT.
IT'S FOR PROTECTION OF THE
PUBLIC IN THE FUTURE.
AND UNDER THE DISCOURSE
HOLDINGS THAT THAT TYPE OF,
THAT TYPE OF EFFECT ON A
PERSON THAT HE'S GOING TO
LOSE HIS LICENSE IS NOT A
UNGSMENT WHICH IS REQUIRED
TO BE -- PUNISHMENT WHICH HE
IS REQUIRED TO BE INFORMED
OF IN THE COURSE OF A, OF A
PLEA.
NOW --
>> NOW, I UNDERSTAND THAT,
AND I GUESS, THAT'S WHAT I
JUST -- I TIDDANT TALK ABOUT
WHAT THE JUDGE HAD TO DO.
I'M TALKING ABOUT WHAT A
COMPETENT DEFENSE LAWYER
WOULD HAVE TO DO.
>> WELL HE -- EVEN GET THE
LICENSE, IT HE HAS TO TAKE A
TEST TO OBTAIN THE LICENSE.
HE HAS TO LOOK AT -- IF YOU
GO TO THE DEPARTMENT OF
MOTOR VEHICLES HAND BOOK, IT
INFORMS AN INDIVIDUAL OF ALL
OF THESE DIFFERENT -- OF ALL
OF THESE DIFFERENT THINGS
THAT IF YOU DO THIS, THAT
YOUR LICENSE WILL BE
SUSPENDED OR REVOKED.
AS A MATTER OF FACT, IN THIS
PARTICULAR CASE, YOU CAN GET
THE HABITUAL TRAFFIC
OFFENDER REVOCATION WITHOUT
EVER SEEING A LAWYER BECAUSE
IT CAN BE DONE BY 15 CIVIL
INFRACTIONS.
IF YOU GET 15 CIVIL
INFRACTIONS WITHIN A CERTAIN
PERIOD OF TIME, THE
DEPARTMENT OF MOTOR
VEHICLICIZE GOING TO SEND
YOU THAT ORDER AND SAYING
YOUR LICENSE NOW REVOKED YOU
HAVE A RIGHT FOR A HEARING
INFRONT OF THE
ADMINISTRATIVE HEARING
OFFICER AND YOU CAN UNDER
CERTAIN CIRCUMSTANCES APPLY
FOR A WORK PERMIT.
>> WHAT I AM LOOKING THROUGH
HERE IS WAS THIS A CASE
ARGUED HERE AS AN
INEFFECTIVE ASSISTANT TO
COUNSEL CLAIM OR WAS IT
ARGUED AS AN INVOLUNTARY
PLEA CAME?
>> IT APPEARS TO ME THAT
IT'S BEEN PRESENTED AS
INVOLUNTARY PLEA CAME CLAIM.
NOW IN THE TRIAL COURT I
WASN'T THERE SO I DON'T KNOW
EXACTLY HOW IT WAS ARGUED
BUT PRIMARILY IT WAS THE
PLEA -- HE WAS ASKING TO
WITHDRAW HIS PLEA BECAUSE IT
WAS INVOLUNTARY BECAUSE HE
WASN'T NOTIFIED BECAUSE OF
THE OTHER CONSEQUENCESS.
THAT'S THE WAY I UNDERSTOOD
IT TO BE IN THE TRIAL COURTS
ORD OR THE CIRCUIT COURT'S
ORD IN APPEAL.
>> WAS --
>> BECAUSE IT WAS --
>> AM I CORRECT THAT DANIEL
OUT OF THE FOURTH DISTRICT
WAS AN INVOLLENITARY PLEA
CAME?
>> -- INVOLUNTARY PLEA CAME
CLAIM?
>> DANIEL WAS --
>> OR WAS IT INEFFECTIVE
ASSISTANCE OF COUNSEL CLAIM?
>> I BELIEVE IT WAS AN
INVOLUNTARY PLEA CLAIM IT
WAS SUSPENSION FOR DRUG
VIOLATIONS.
HE WAS CONVICTED OF FELONY
DRUG VIOLATIONS AND HIS
LICENSE WAS SUSPENDED
BECAUSE OF THAT.
>> AND IT WAS MY
RECOLLECTION WAS IT WAS THAT
IT WAS AN INVOLUNTARY PLEA
CLAIM.
>> THAT'S MY RECLEGS TOO,
YOUR HONOR, AND I DON'T SEE,
CORRECT ME FPLIER ARE WRONG
BECAUSE I'M CONCERNED ABOUT
THIS, WHETHER EITHER THE
MAJORITY, THE CONCURRING
OPINION, OR THE DISSENT IN
THE DISTRICT, FIRST DISTRICT
IN THIS CASE, DEALT WITH
THIS AS AN INEFFECTIVE
ASSISTANCE TO COUNSEL.
>> NO, THEY DID NOT.
AND THE CIRCUIT COURT IN ITS
APPELLATE OPINION DIDN'T
REALLY DEAL WITH IT AS AN
INEFFECTIVE DEFENSE CLAIM
BECAUSE IT DIDN'T ANALYZE IT
UNDER STRICKLAND IT WAS
WHETHER THE DEFENDANT WAS
REQUIRED TO BE ADVISED OF
THE CONSEQUENCES OF HIS PLEA
AND IT FOUND THAT IT WAS A
DIRECT AND IMMEDIATE
CONSEQUENCE.
DIDN'T EVEN DEAL WITH THE
EFFECT ON THE RANGE OF
PUNISHMENT, WHICH IS THE
TARPD THAT SHOULD'VE BEEN
APPLIED.
>> BUT THE CIRCUIT COURT DID
HOLD THAT IT WAS THE
OBLIGATION OF DEFENSE
COUNSEL IN THIS CASE.
COMPETENT DEFENSE COUNSEL.
IS THAT RIGHT?
92 WELL, HE PUT IN -- HE PUT
IN ONE LINE.
THIS ONE LINE AT THE END
THAT SAYS COUNSEL SHOULD'VE
ADVISED HIM.
I BELIEVE IS THE ESSENCE OF
THAT, OF THAT ONE LINE.
>> THERE SEEMS TO BE AN
INCONGRUITY IN THE DISTRICT
COURT CASES ON THESE ISSUES
IN THAT SOME TALK ABOUT THE
INVOLUNTARINESS OF THE PLEA
BECAUSE THEY WEREN'T
INFORMED AND OTHERS TALK
ABOUT WHETHER THERE WAS
COMPETENT COUNSEL BECAUSE IT
WASN'T INFORMED.
IT SEEMS TO ME THAT IF
SOMEONE IS TRYING TO
WITHDRAW THE PLEA BECAUSE
COUNSEL DID NOT INFORM OF
THE RAMIFICATIONS, THAT ONE
SHOULD CONDUCT A STRICTLAND
ANALYSIS AS WE DID IN GRAUSNER
AND AS WE HAVE IN SOME OTHER
CASES.
NOT NECESSARY IN
INVOLUNTARINESS ANALYSIS BUT
SHOULD WE CLARIFY THE LAW IN
THIS?
IS THE LAW KIND OF UNCLEAR
ABOUT WHICH ANALYSIS YOU USE
IN THIS CIRCUMSTANCE?
>> THE LAW IS A LITTLE
UNCLEAR AS TO WHICH APPROACH
TO TAKE TO THAT REQUEST TO
WITHDRAW THE, THE PLEA, AND
MANY INSTANCES IT MAY --
>> SOME ALSO SEEM TO HAVE
THE SAME ANALYSIS WHEREWHERE
WHETHER IT WAS THE LAWYER
ADVISING OR WHETHER IT WAS
THE TRIAL JUDGE ADVISING.
THAT SEEMS TO BE UNCLEAR AS
WELL.
>> IN THE DISTRICT COURT
CASES, I HAVE RARELY SEEN
REFERENCE IN THE REFERENCE
TO STRICKLAND, THE
APPROPRIATE STANDARD, WHEN
THEY'RE ARGUING THE -- THAT
HAD LAWYER WAS INEFFECTIVE
FOR NOT ADVISING.
THEY SEEM TO LOOK MORE AT
THE CONSEQUENCES OF THE PLEA,
AND THAT IS PROBABLY IN PART
BECAUSE IN ORDER FOR COUNSEL
TO BE INEFFECTIVE, THERE
MUST BE SOMETHING THAT HE IS
ABSOLUTELY REQUIRED TO
ADVISE THEM OF X. THIS COURT
HAS PREVIOUSLY HELD THAT
THOSE TYPES OF CONSEQUENCES
OF CIVIL ADMINISTRATIVE ACT
DON'T AMOUNT TO DEFISH WANT
PERFORMANCE.
I THINK THAT WAS PART OF
DICKEY.
THAT WAS DECIDED I BELIEVE
LAST YEAR OR THE YEAR
BEFORE.
>> DICKEY DIDN'T HEAR THE
MAJORITY OPINION FOR, FOR
WHICH PRONG OF THE ANALYSIS
IT RELIED ON.
ALL IT IS WAS IT WASN'T
INEFFECTIVE ASSISTANT OF
COUNSEL.
SOME JUSTICE SAID IT WASN'T
DEFICIENT PERFORMANCE.
OTHERS SAID IT WASN'T
PREJUDICE.
>> I AGREE, BUT IN EITHER
EVENT THEY SAID THAT IT WAS,
IT WAS NOT INEFFECTIVE
ASSISTANCE.
>> IT WASN'T DICKEY HAVING
TO DO WITH WHAT MIGHT HAPPEN
IN A FUCHER TO A DEFENDANT
THAT MIGHT COMMIT A CRIME,
WAS THAT NOT DICKEY?
>> DICKEY HAD TO DO --
>> GO AHEAD.
>> DPIKY DID HAVE TO DO WITH
THAT.
>> AND THAT'S WHY, AND AGAIN,
WE MAY BE IN A SITUATION
WHERE THE LAW MAYBE DOES
NEED TO BE CHRAURIFIED
BECAUSE I AM ONE SURE
REQUIRING MORE AND MORE
REQUIREMENTS ON TRIAL JUDGES
TO, YOU KNOW TOO, PUT EVERY
SINGLE THING AND THE KITCHEN
SINK IN BUT IN THIS CASE,
THE ONLY PART OF THE SINK
THAT SEEMS LIKE IT NEED --
NEEDED TO BE DISCUSSED BY
SOMEBODY WAS THE ONLY PART
OF THIS CRIME THAT WAS GOING
TO TRULY AFFECT THE
DEFENDANT LOSING HIS LICENSE
FOR FIVE YEARS.
>> WELL, IT WAS ONLY GOING
TO AFFECT HIM BECAUSE OF THE
FACT THAT THAT NEGOTIATATE
ADPLEA WHERE HE WOULDN'T
HAVE TO GO TO JAIL FOR A
YEAR.
AND, THE --
>> AND SO THEREFORE, HE
WOULD MAKE, A MAKE A
VOLUNTARY DECISION WITH HIS
TRIAL COUNSEL EITHER I HAVE
ON ONE HAND I GO TO JAIL AND
THE OTHER HAND I PAY $250.
WELL THAT'S A PRETTY EASY
DECISION.
>> THAT'S A PRETTY --
>> IF SOMEONE SAYS ON ONE
TIME YOU MIGHT GO TO JAIL
FOR 60 DAYS AND THE OTHER 2
HN $50 AND I LOSE MY LICENSE
FOR FIVE YEARS YOU KNOW I'M
GOING TO TRY GOING TO TRIAL
OR I'M GOING TO PICK GOING
TO JAIL FOR 60 DAYS BECAUSE
I CAN'T BE WITHOUT MY
LICENSE FOR FIVE YEARS.
>> WELL, YOU ONLY GET YOUR
LICENSE REVOKED FOR FIVE
YEARS AS A HABITUAL TRAFFIC
OFFENDER IN HIS PARTICULAR
CIRCUMSTANCE WHERE HE'S GOT
MULTIPLE PRIORS AND IN HIS
SITUATION IS LICENSE WAS
STILL ALREADY REVOKED AT THE
TIME THAT HE ENTERED HIS
PLEA.
>> I DON'T THINK THAT'S
RESPONSIVE.
MOST RESPECTFULLY.
IT WAS AUTOMATIC, THAT IS,
HE GETS CONVICTED OF HIS
OFFENSE AND IT IS AN
AUTOMATIC.
>> THAT IS CORRECT.
>> SUSPENSION.
>> DID YOU HAVE THE
OPPORTUNITY TO FINISH
JUSTICE ANSTEAD'S QUESTION?
HE WAS REQUIRING WITH REGARD
HOW TO LOWER COURT JUDGES
REALLY ADDRESS THIS ISSUE?
AND I THINK YOU'RE IN THE
PROCESS OF RESPONDING TO
THAT?
S.
>> WELL, I THINK THAT THE
CIRCUIT COURT HAS APPELLATE
POSITION --
>> AS A PART OF THAT.
EXCUSE ME, I DON'T KNOW I
KNOW YOU WEREN'T ON THE
TRIAL COURT LEVEL BUT IF YOU
COULD TELL US WHAT WAS PLED
AT THE TRIAL COURT LEVEL IN
RESPONSE TO THIS QUESTION WE
MIGHT BE --
>> I DON'T KNOW THAT THOSE
DOCUMENTS ARE IN THE RECORD,
YOUR HONOR?
>> THEY WERE NOT PART OF THE
RECORD AT ALL?
THE 3..850.
>> THERE WAS NO APPENDIX FOR
CERT?
>> NO APPENDIX FOR CERT.
>> YOU HAVEN'T GONE BACK AND
LOOKED AT WHAT THE ACTUAL
CLAIM WAS --
>> WE'VE GOT THE OPINION AND
THE ORDER.
>> WE HAVE THE OPINION AND
ORDER BUT THEY WERE ASKING
ABOUT THE MOTION.
>> THE FAILURE AND WHETHER
THE ISSUE WAS, GWEN HAD
WROTE, THEN THE
ADMINISTRATIVE ACT OF DIRECT
CONSEQUENCE THE FAILURE TO
ADVISE RENDERS COUNSEL
INEFFECTIVE FOR THE PURPOSE
OF 3.850.
>> THAT WAS WROTE ON THE
APPEAL.
HE WAS THUPELLET JUDGE.
>> YEAH.
>> AND THE COUNSEL COUNTY
COURT.
>> WASN'T THERE A HEARING IN
THE REPLY BRIEF HERE THAT
TALKED -- THE DEFENDANT SAID
MY ATTORNEY THE ASSISTANT
PUBLIC DEFENDER I CAN'T
REMEMBER THE NAME DID NOT
TELL ME THAT MY LICENSE
WOULD BE SUBJECT TO --
>> TLUS WAHEARING.
THE HEARING WASN'T IN THE --
IT WASN'T IN THE RECORD
EITHER, YOUR HONOR, AS FAR
AS THE, THE CERT AP PENDX.
MY UNDERSTANDING IS THAT THE
DEFENDANT DID SAY THAT HIS
LAWYER DIDN'T TELL HIM.
THAT IS MY UNDERSTANDING.
>> ASSUMING YOU DON'T HAVE
THE LEAD PLEADING AND YOU
COULDN'T UNDERSTAND THAT.
ANSWER JUDGE ANSTEAD'S
QUESTION.
WE'LL GET BACK TO --
>> UM, I THINK THERE IS AN
INTERACTION AS I WAS
STARTING TO SAY AND IF I
REMEMBER YOUR QUESTION
CORRECTLY, AT THIS POINT,
JUSTICE ANSTEAD.
>> WELL, I THINK YOU AGREED
THAT THERE IS PROBABLY A
BROADER ISSUE WITH ISSUE TO
THE COUNSEL'S
REPRESENTATION, AND WAS THAT
THE DECISION THAT THE
CIRCUIT COURT SITTING IN ITS
APPELLATE CAPACITY MADE,
THAT IS THAT ON, ON THE
RECORD THAT IT HAD FROM THE
COUNTY COURT, IT DECIDED
THAT, YES, AN
INEFFECTIVENESS CLAIM WAS
PROVEN BASED ON ITS
CONCLUSION THAT COUNSEL
SHOULD'VE ADVISED THE
DEFENDANT OF THE REVOCATION
AS A FOREGONE CONCLUSION.
OF THE CONSEQUENCE OF HIS
PLEA.
>> IN MY OPINION, I DON'T
THINK THAT'S CLEAR FROM THE
ORDER IN THE WAY THAT THE,
YOU'RE OF THE OPINION OF THE
DCA, THE CIRCUIT COURT
ESSENTIALLY RULED SUSPENSION
OF REVOCATION OF A DRIVER'S
LICENSE, A STATUTORILY
MANDATED STRGS STRTIVE ACT
IS A DIRECT CONSEQUENCE OF A
PLEA TO A SPECIFIED DRIVING
OFFENSE REQUIRING DEFENSE
COUNSELS TO WARN THE
DEFENDANT PRIOR TO THE ENTRY
OF THE PLEA.
>> THAT'S WHAT THE --
>> THAT A DIRECT COURT DEALT
WITH.
>> THAT IS CORRECT.
HOWEVER, IN THE SHORT ORDER
THAT THE CIRCUIT COURT AND
ITS APPELLATE CAPACITY
ENTERED, IT IS THAT CASE LAW
HAS BEEN CITED TO ME, I'M
GOING TO LOOK AT THE
DICTIONARY FOR WHAT'S A
DIRECT CONSEQUENCE.
I FIND THIS WAS A DIRECT
CONSEQUENCE.
AND --
>> COME THE LAWYER SHOWED --
>> BUT THERE WAS NEVER ANY
STRICKLAND ANALYSIS AS TO
DEFICIENT PERFORMANCE AND
PREJUDICE.
IT WAS ACTUALLY HANDLED MORE
AS IF IT WAS.
>> INVOLUNTARY.
>> INVOLUNTARY.
THAT'S THE STATE'S READ FROM
THAT PARTICULAR ORDER.
>> AS IF IT WERE A MOTION TO
WITHDRAW A PLEA.
>> IT'S --
>> YOU CAN WITHDRAW A PLEA
THAT WASN'T VOLUNTARY AND IT
SEEMS A LOT OF COURTS USE
THAT ANALYSIS EVEN THOUGH
WE'RE IN POST-CONVICTION.
>> THAT IS, THAT IS, THAT IS
CORRECT.
>> AND I WOULD JUST LIKE TO
SAY THAT THE THIS TYPE OF
STRUCTURE WHERE INDIVIDUALS
HAVE THEIR LICENSES
SUSPENDED FOR THE PROTECTION
OF THE PUBLIC, ISN'T AS
JUSTICE ANSTEAD SAID, THAT
DOESN'T JUST HAVE TO DO WITH
DRIVER'S LICENSES, LAWYERS
WHO COMMIT OFFENSES IN
CHAPTER, -- CHAPTER 456
INVOLVING MEDICAL DOCTORS
AND OTHER MEDICAL
PROFESSIONALS, IF YOU COMMIT
A, IF YOU COMMIT A FELONY
VIOLATION OF SERVILE
STATUTES INCLUDING FRAUD
STATUTES, MEDICAID STATUTES,
YOUR LICENSE IS GOING TO BE
SUSPENDED AUTOMATICALLY IF
YOU FAIL TO -- IF YOU HAVE
TO GIVE A URINE SAMP FRL
SOME REASON AND IT'S DIRTY,
YOUR LICENSE IS SUSPENDED
AUTOMATICALLY.
IF YOU FAIL TO PAY YOUR
STUDENT LOANS, YOUR LICENSE
IS SUSPENDED AUTOMATICALLY.
SO THIS SORT OF LICENSING
SUSPENSION AS A PROTECTION
FOR THE PUBLIC, WHICH IS
WHAT THIS COURT HAS FOUND
PREVIOUSLY IN -- I THINK IT
IS, IS A, IS A, PRACTICE
THAT HAS THROUGHOUT THE
LICENSING STATUTES, IS A
PRACTICE WHICH THE
LEGISLATURE IS WELL AWARE
OF, AND THEY CREATE THEIR
STATUTES BASED ON THAT, THAT
PARTICULAR KNOWLEDGE.
>> I TOLD YOU THAT I'VE READ,
YOU KNOW, AS MANY AS I COULD
ANYWAY, OF THESE PROVISIONS.
AND AT LEAST ONE OF THEM,
YOU KNOW, HAS THE LANGUAGE
THAT UPON CONVICTION, OF ONE
OF THESE TRAFFIC OFFENSES OR,
OR OTHERWISE, THAT THE COURT
SHALL DIRECT THE DEPARTMENT
TO SUSPEND THE LICENSE.
NOW.
WOULD YOU AGREE, FIRST OF
ALL, THAT WE LOOK AT THIS
THING THROUGH A DIFFERENT
PRISM IF WE CONSIDER THE
ISSUE OF WHAT THE COURT IS
SUPPOSED TO TELL THE
DEFENDANT.
AS OPPOSED TO WHAT A LAWYER
SHOULD ADVISE HIS CLIENT?
>> YES, YOUR HONOR, THERE IS
A, THERE IS A, THERE ARE
DIFFERENT LEGAL STANDARDS
APPLICABLE TO EACH OF THOSE
--
>> WHAT THE OBLIGATION OF
THE LAWYER IS AS OPPOSED TO
-- ALL RIGHT.
WHEN -- WHAT WOULD BE YOUR
POSITION WHEN WE HAVE SUCH
AN EXPRESS PROVISION THAT
SAYS THAT UPON CONVICTION OR
ACCEPTED A PLEA, THAT THE
COURT SHALL DIRECT THE
DEPARTMENT TO SUSPEND THE
LICENSE?
IN OTHER WORDS, THE COURT
SHALL ORDER, IN ESSENCE,
UNDER THAT LANGUAGE, THE --
>> ORDERING THE LICENSE
SUSPENDED, IS THAT A, DOES
THAT CONTEMPLATE A HEAVIER
RESPONSIBILITY ON COUNSEL?
>> AT THIS POINT IN TIME, NO,
YOUR HONOR, THE COURTS THAT
HAVE EXAMINED THAT
PARTICULAR SITUATION, HAVE
HELD THAT IT'S STILL A CIVIL
ADMINISTRATIVE ACT, AND I
BELIEVE IN THE BACK I'VE
CITED SOMEF OTHOSE CASES IF
THE COURT DESIRES I COULD
ALWAYS SUPPLEMENT WITH THAT.
BUT EVEN MORE SO, THE CASES
REFLECT THAT IN MANY
INSTANCES, THE DRIVERS IN
APPLYING THAT PARTICULAR
STATUTORY LANG WJ, THE COURT
SUSPENTED THE LICENSE FOR
SIX MONTHS AND, IT GOT UP TO
THE DEPARTMENT OF MOTOR
VEHICLES AND THE MOTOR
VEHICLES DETERMINED THAT THE
COURT APPLIED THE WRONG
SUSPENSION STANDARD BASED ON
HOW MANY PRIOR CONVICTIONS
WITHIN A CERTAIN PERIOD OF
TIME.
THE COURTS OF THIS STATE
HAVE SAID THAT IS THE
COURT'S RESPONSIBILITY AND
HELD THE DEPARTMENT'S
INCREASED SUSPENSION SO IT'S
REALLY MORE THE COURT ACTING
AS AN ADMINISTRATIVE ARM IN
THAT PARTICULAR CONTEXT FOR
THE CIVIL ADMINISTRATIVE
AGENCY IMPOSING THE PENALTY.
HE'S THERE IN FRONT OF THEM
AT COURT IN FRONT OF THE
STATUTORY THING.
IF HE DID IT WRONG THE
ADMINISTRATIVE AGENCY
CORRECTED IT.
>> MR. HILL WITH --
>> YOU DON'T THINK THAT THE
COURT UNDER THOSE
CIRCUMSTANCES, WHEN THEY'RE
TALKING TO THE DEFENDANT,
THEY SAID, OKAY, I'M GOING
TO GIVE YOU THIS $250 FINE.
YOU GOING TO HAVE TO SERVE
15 DAYS IN JAIL.
AND, I HAVE TO SPEND THIS.
HAVE TO TAKE THE NEXT STEP
AND SAY, AND I HAVE TO TELL
THE DEPARTMENT THAT YOUR
LICENSE NEEDS TO BE REVOKED.
WHEN IN-THE JUDGE HAS NO
OPTION, BUT TO TELL THE
DEPARTMENT HEAD TO REVOKE
THE LICENSE UNDER THE
STATUTE.
>> YOUR HONOR, THE STATE IS
NOT IN FAVOR OF PUTTING
ADDITIONAL BURDENS ON THE
TRIAL JUDGES IN SENTENCING
CONTEXT.
WITH THE PREVIOUS ARGUMENT
WE -- THE BURDENS HAVE BM
KMENT INCREASINGLY GREAT
OVER THE YEARS AND I DON'T
THINK THAT'S A REQUIREMENT.
>> AND IF THE JUDGE HAS NO
OPTIONS, DOESN'T THAT BECOME
A DIRECT CONSEQUENCE OF THE
PLEA?
>> IT WAS A DIRECT
CONSEQUENCE OF THE PLEA BUT
THE STATE'S POSITION IS THAT
IT IS NOT PUNISHMENT AND IT
HAS BEEN DETERMINED NOT TO
BE PUNISHMENT AND THEREFORE
IT IS NOT SOMETHING THAT
DOES HAVE TO BE ADVDS BIDE
THE TRIAL JUDGE.
>> MR. HILL, WITH YOUR
ASSISTANCE YOU HAVE ASPENDED
ALL YOUR TIME.
>> I APOLOGIZE FOR YOUR
MISPRONUNCIATION.
MY SHEET HAS AN S.
MR. WHITTON, REBUTTAL PLEASE,
SIR.
>> MAY IT PLEASE THE COURT.
FIRST LET ME TALK ABOUT THE
RECORD ISSUE.
MY RESPONSE TO THE PETITION
FOR SERVICE YOURY HAD ITS
APPENDS.
SO THE MOTION THAT WAS FILED
COIN OPT COURT AND THE
TRANSCRIPT OF THE HEARING
THAT WAS CONDUCTED IN COUNTY
COURT SHOULD BE IN THE
RECORD THAT THE DCA
PIRNISHED IF YOU.
I'M LOOKING, PAGE 83 ON
THEIR RECORD AND IT'S 87 --
>> AND IT INCLUDED THE
DEFENDANT PST TESTIMONY AS
TO WHAT HIS COUNSEL HAD
ADVISED HIM?
>> IT SHOULD HAVE, YOUR
HONOR, NOW I WILL TELL YOU I
HAVE NOT PHYSICALLY
INSPECTED YOUR COURT'S FILE.
>> BUT THERE WAS A
TRANSCRIPT OF THAT HEARING?
>> THERE WAS A TRANSCRIPT OF
THAT HEARING.
IT'S ABOUT TEN PAGES LONG.
IT'S NOT A LENGTHY TRIMENT
AT ALL.
>> DO YOU AGREE THERE SHOULD
BE A DIFFERENT STANDARD FOR
WHAT A TRIAL JUDGE HAS TO
ADVISE A DEFENDANT AND WHAT
COUNSEL,.
>> I THINK THAT THERE IS
ONE, AND I THINK THAT THAT'S
THE POINT OF HAVING COUNSEL
THERE IN FACT FOR MOST OF
THESE CASES AND WHY UNDER
THE -- BE EVEN UNDER ALABAMA
v. SHELDON CASE YOU HAVE TO
HAVE COUNSEL EVEN FOR THESE
RELATIVELY MINOR CASES.
>> YES, YOUR HONOR.
>> IN DETERMINING WHETHER
COUNSEL'S PERFORMANCE WAS
DEFICIENT UNDER STRICKLAND,
DO YOU PROPOSE THE SAME KIND
OF ANALYSIS IN THAT COUNSEL
HAS TO ADVISE HIS CLIENT OF
DIRECT CONSEQUENCES BUT NOT
COLLATERAL?
OR THAT COUNSEL HAS TO --
ITS DEFICIENT PERFORMANCE IF
COUNSEL DOES NOT ADVISE OF
EVEN COLLATERAL
CONSEQUENCES?
>> I THINK THAT COUNSEL HAS
TO ADVISE THE CLIENT OF
THOSE THINGS THAT WOULD MAKE
A MATERIAL DIFFERENCE IN HIS
PLEA AND AVOID THE DIRECT
COLLATERAL SORT OF THING.
AND MR. BOLWARE CLEARLY
TESTIFIED HE WOULD NEVER
HAVE ENTERED HIS PLEA IF HE
ENTERED A FIVE YEAR PLEA.
>> THAT GOES PREJUDICE PLEA.
HE SAID I WOULD NOT HAVE
PLED BUT MY IF MY COUNSEL
HAD ADVISED ME OF THIS
WHETHER HE WAS PREJUDICE BUT
IS IT -- DOES IT GO TO
DEFICIENT PERFORMANCE IF IT
WAS COLLATERAL CONSEQUENCE?
OR IS IT SOME OTHER ANALYSIS
-- FOR TRIAL COURTS OR NOT
FOR -- STRICKLAND PURPOSES.
>> PERSONALLY NEVER LIKED
THE DIRECT COLLATTERAL
ANALYSIS THAT THE COURT HAS
ADOPTSED IN THIS CONTEXT
BECAUSE THERE ARE MANY
THINGS YOU GET A LAWYER FOR
THAT YOU ARE GOING TO ASK
YOUR LAWYER QUESTIONS OR
YOUR LAWYER SHOULD
ANTICIPATE QUESTIONS BUTS IT
IS THE RULE, I THINK, THAT
HAS KIND OF EVOLVED BECAUSE
YOU KNOW, THE DISTRICT
COURTS AND THE CIRCUIT
COURTS DON'T REALLY GET INTO
A LOT OF DISTINCT AND
ANALYSIS BETWEEN WHAT THE
THE JUDGE ADVISE THE
DEFENDANT AND WHAT THE
COURTS --
>> IN, IN, IN, IN YOUR BRIEF,
YOU DIDN'T ARGUE THAT AT
ALL.
>> I DID NOT MAKE THAT
DISTINCTION AT ALL.
>> AND YOU DIDDANT ARGUE
GROESNER.
I MEAN WHAT YOU DIDN'T ARGUE
IS THIS IS AS INEFFECTIVE
COUNSEL CLAIM.
>> YOUR HONOR, I SEE IT AS
INEFFECTIVE ASSISTANCE.
IT WAS BROUGHT AS
INEFFECTIVE ASSISTANCE.
I THINK THE DISTRICT COURT
RULED ON IT AS INEFFECTIVE
ASSISTANCE.
>> YOU DIDN'T MENTION
INEFFECTIVE ASSISTANCE.
>> NO, MY STATEMENT OF THE
COURSE BEGAN AS IT WAS AN
INEFFECTIVE ASSIST SKPPBS I
JUST TOOK IT FROM THAT AND
THAT'S --
>> YOU DIDN'T STRICKLAND v.
WASHINGTON.
>> NOBODY ARGUED STRICKLAND
ANYWHERE AND THAT'S SOMEHOW,
WHAT GETS INTO THESE CASES.
THONG, YOUR HONOR.
>> THANK YOU VERY MUCH.
>> WE'LL TAKE THE CASE UNDER
ADVISEMENT.
THE COURT WILL TAKE ITS
MORNING RECESS.
>> PLEASE RISE.