State Of Florida v. Herbert Dickey

Supreme Court of Florida

____________

No. SC05-516

____________

STATE OF FLORIDA,

Petitioner,

vs.

HERBERT DICKEY,

Respondent.

[April 20, 2006]

PER CURIAM.

We review the First District Court of Appeal's decision in Dickey v. State, 30 Fla. L. Weekly D443 (Fla. 1st DCA Feb. 15, 2005), which certified the following question to be of great public importance:

WHETHER ALLEGATIONS OF AFFIRMATIVE MISADVICE BY TRIAL COUNSEL ON THE SENTENCE-ENHANCING CONSEQUENCES OF A DEFENDANT'S PLEA FOR FUTURE CRIMINAL BEHAVIOR IN AN OTHERWISE FACIALLY SUFFICIENT MOTION ARE COGNIZABLE AS AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM?

We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We answer the question in the negative. As explained below, we hold that such claims are insufficient to meet both prongs of the test for alleging the ineffective assistance of counsel established in Strickland v. Washington, 466 U.S. 668 (1984).

I. FACTS

In February 1996, Herbert Dickey pled no contest to charges of criminal mischief and failure to appear, both third-degree felonies with statutory, five-year maximum sentences. See §§ 806.13(1)(b)(3), 843.15, Fla. Stat. (1995). After determining that the plea was voluntarily entered, the court accepted it and, pursuant to a plea agreement on the criminal mischief charge, withheld adjudication and sentenced Dickey to two years' probation, which would terminate early upon Dickey's paying restitution.[1] On the failure-to-appear charge, the court also withheld adjudication and sentenced Dickey to a concurrent two-year probationary term.

In May 2001, Dickey, then a prisoner in Alabama, filed in a Florida circuit court a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. He raised four grounds for relief, only one of which is pertinent here. Dickey alleged that his Alabama sentence was enhanced based on his prior Florida conviction. He claimed that his defense counsel in 1996 told him that his conviction â€