District Court of Appeal of Florida,
The STATE of Florida, Appellant,
Nessim Jaime SION, Appellee.
Nov. 15, 2006.
Background:After defendant entered a plea of nolo contendere to information charging himwith first degree grand theft, defendant moved to vacate and set aside hisplea. The Circuit Court, Miami-Dade County, David C. Miller,J., granted defendant's motion to vacate and set aside the plea and judgment,and the State appealed.
Holding: TheDistrict Court of Appeal, Green, J., held that defendant should not have beenpermitted to withdraw his plea.
 Criminal Law 110 273(4.1)
110k272Plea of Guilty
110k273(4)Requisites and Proceedings for Entry
110k273(4.1) k.In General. Most Cited Cases
Themain purpose for ascertaining a factual basis for a plea is to prevent adefendant from mistakenly pleading to the wrong offense. West's F.S.A. RCrP Rule 3.172(a).
 Criminal Law 110 273(4.1)
Whena trial court fails to establish in the record the requisite factual basis fora plea of guilty, the vacation of the guilty plea is not the sole remedy. West's F.S.A. RCrP Rule 3.172(a).
 Criminal Law 110 274(1)
110k274(1) k.In General. Most Cited Cases
Inorder to withdraw a guilty plea after sentencing for lack of a factual basis,the defendant has the burden of establishing that a manifest injustice or clearprejudice has occurred.
 Criminal Law 110 273(4.1)
Therewas, in fact, a factual basis in the record for defendant's plea to the chargedoffense apart from his stipulation and stipulation of his counsel; arrest affidavitwas part of record before trial court at the time of defendant's plea, andalthough trial court did not specifically make reference to this affidavit, thecourt did acknowledge that it had enough proof in court to send this case tojury for its determination of defendant's guilt, arrest affidavit sufficientlyset forth factual basis for charged offense of first degree grand theft, andfact that defendant began to immediately make restitution to victim uponlearning of criminal investigation into matter was sufficient to constitutetacit admission of guilt by defendant to charged offense. West's F.S.A. RCrP Rule 3.172(a).
 Criminal Law 110 274(3.1)
110k274(3)Grounds for Allowance
110k274(3.1) k.In General. Most Cited Cases
Sincerecord affirmatively established that defendant knowingly and intelligentlyentered into plea agreement and that there was a sufficient factual basis inthe record to support the plea, defendant should not have been permitted towithdraw his plea.
*935 Charles J. Crist, Jr.,Attorney General and Olga L. Villa, Assistant Attorney General, for appellant.
Sands & Moskowitz, P.A.,and Leonard A. Sands,Miami, for appellee.
Before GREEN, RAMIREZ, &WELLS,JJ.
Thisis an appeal from an order vacating appellee Nessim Jaime Sion's plea to firstdegree grand theft on the grounds that a factual basis for the plea was notestablished other than through stipulation of counsel. We reverse as weconclude that apart from the stipulation of counsel, the record before thecourt disclosed a factual basis for the plea.
Sionwas charged by information with one count of first degree grand theft ofcurrency of $100,000 or more. According to the arrest affidavit in this case,Sion had been a patient of his medical doctor victim. Sion befriended thedoctor and offered the doctor an opportunity to purchase stocks in a particularcompany. The doctor paid Sion $103,000 over a period of six months. At somepoint, Sion gave the doctor a stock certificate for $25,000 in shares. Thisstock certificate later proved to be a counterfeit certificate for shares thatwere never owned by Sion. The arrest affidavit further averred that uponlearning of the police investigation into the matter, Sion made partialrestitution of $25,000 to the victim and surrendered to the police in thepresence of his attorney.
OnJuly 24, 2003, Sion entered a plea of nolo contendere to the information inexchange for a withhold of adjudication, and two years of probation withspecial conditions.FN1 During the plea colloquy, Sion wasquestioned as to his understanding of the charge against him; his understandingof *936 the terms of the plea agreement and the consequences ofviolating the conditions of probation; whether he was entering the plea freelyand voluntarily and not under the effects of drugs; whether he understood theconstitutional rights that he was relinquishing by entering the plea; andwhether he was satisfied with the services of his attorney. The trial courtalso asked Sion whether he understood that by taking his plea, Sion could getdeported or be subjected to other negative immigration consequences if he wasnot a United States citizen. Sion indicated that he so understood.FN2
FN1.These conditions were as follows:
1) Sion pay restitution in the amount of $83,500 at a rate of$6,960 monthly during the first year of probation;
2) Sion be allowed to travel outside the country for businesspurposes;
3) Sion enter and successfully complete the theft course duringthe second year of probation;
4) Sion serve 75 hours of community service at the rate of 10hours per month; and
5) Sion pay court costs.
FN2. Thecourt inquired as follows:
[Court]: Do you understand that this plea can get you deported ifyou are not a United States citizen?
[Defendant]: Yes. I am not a citizen.
[Court]: You are not a citizen?
[Court]: So do you understand that this plea can get you deportedor some other negative immigration consequences?
[Court]: Do you understand that?
[Defendant]: Yes, I do understand.
During the course of the plea, the trial court stated that itfound a factual basis for the plea and both the defense counsel and Sionstipulated as follows:
[Court]: I find a factual basis for the plea, does the defense sostipulate and waive PSI?
[Defense Counsel]: For purposes of the plea.
[Court]: I find proof in court enough for me to give your case toa jury so the jury would have had to decide if you were guilty or if you werenot, but I find that you do not want to go to trial, I find that you do want totake this plea. I also find that you are alert, intelligent and you understandthe charges against you and the consequences of the plea you have agreed to. Ifind you have been represented by a very good lawyer, Mr. Darwaresh, with whomyou say you are satisfied with. I also find that you made the plea agreementfreely, voluntarily and without any undo promises of coercion. Did youunderstand those findings that I just made?
[Defendant]: Yes, I did. In the legal terms that you used, I thinkI understand.
[Court]: Do you agree with what you understood me to say?
OnJuly 22, 2005, Sion moved to vacate and set aside his plea pursuant to Rule 3.850, Florida Rules of CriminalProcedure. He claimed that his plea was fundamentally deficient because thecourt failed to ascertain independently whether there was a factual basis forthe plea apart from the stipulation of counsel. The only prejudice alleged wasthat at the time Sion was out of the country on business and was attempting torenew his visa to reenter the United States, but could not do so because of theplea.FN3 The trial court denied thispost-conviction motion as legally insufficient.
FN3.Sion had completed his probation at this time.
Sionappealed this order to this court in August 2005. On September 29, 2005, thetrial court directed counsel to move this court to relinquish appellatejurisdiction for the trial court to reconsider its order. This courtrelinquished jurisdiction to the trial court. In a subsequent order, the trialcourt reversed itself and issued an order granting Sion's motion to vacate andset aside the plea and judgment. Citing to Koenig v. State, 597 So.2d 256 ( Fla.1992),the trial court found that "a stipulation with no factual basis in the recordis insufficient." The State then commenced the instant appeal.
TheState argues that although the transcript of the plea colloquy does not reflecta recitation of the facts supporting a factual basis for the plea in therecord, there was nevertheless evidence in the record before the trial court(i.e. complaint/arrest affidavit) to establish a factual basis for the plea.Hence, it argues, the trial *937 court's reliance on Koenig ismisplaced, as Koeniginvolved a death penalty plea where there was absolutely no record evidence ofthe crimes to which the defendant pled. We agree.
 Prior to accepting a plea of guilty ornolo contendere, the trial court must be satisfied both that the plea isvoluntarily entered and that there is a factual basis for it. Fla. R.Crim. P. 3.172(a).The main purpose for ascertaining a factual basis for a plea is to prevent adefendant from mistakenly pleading to the wrong offense. See Suarez v. State, 616 So.2d 1067, 1068 ( Fla. 3d DCA 1993)(citing Williams v. State, 316 So.2d 267 ( Fla.1975)).The Florida Supreme Court has held that a trial court has broad discretion inemploying the procedure to be used to gather the factual information necessaryto establish the elements of the offense to which the defendant has entered aplea of guilty.
We hold that the court may satisfy itself by statements andadmissions made by the defendant, his counsel, and the prosecutor; by factualevidence heard or filed in the cause, i.e. preliminary hearings, motions tosuppress, or depositions taken in the cause. Under appropriate circumstances,the presentence investigation report may be used to present this factualinformation to the trial court. These are not the exclusive means for a trialcourt to reach a determination. The trial court is free to utilize whateverprocedure is best for the particular case before it to ensure that thedefendant is entering a plea to the proper offense under the facts of the case.But whatever method is employed, the court should indicate for the record thesource of the factual information supporting the plea.
Williams, 316 So.2d at 273.When a trial court fails to establish in the record the requisite factual basisfor a plea of guilty, the vacation of the guilty plea, however, is not the soleremedy. Id.Indeed, in order to withdraw a guilty plea after sentencing for lack of afactual basis the defendant has the burden of establishing that a manifestinjustice or clear prejudice has occurred. Id. at 274. James v. State, 886 So.2d 1032 ( Fla. 4th DCA 2004); State v. Fox, 659 So.2d 1324 ( Fla. 3d DCA 1995); Blackwood v. State, 648 So.2d 294 ( Fla. 3d DCA 1995); Suarez; Monroe v. State, 318 So.2d 571 ( Fla. 4th DCA 1975).
 In the instant case, we find no meritto Sion's assertion that there was no factual basis in the record for his pleato the charged offense apart from his stipulation and the stipulation of hiscounsel. The arrest affidavit was a part of the record before the trial courtat the time of Sion's plea. Although the trial court did not specifically makea reference to this affidavit, the court did acknowledge that it had enoughproof in court to send this case to a jury for its determination of Sion'sguilt. The arrest affidavit sufficiently set forth a factual basis for thecharged offense of first degree grand theft. See Saint Aime v. State, 723 So.2d at 874, 875 (Fla. 3d DCA 1998).Indeed, according to this affidavit, Sion began to immediately make restitutionto the victim upon learning of the criminal investigation into this matter.This, we think, was sufficient to constitute a tacit admission of guilt by Sionto the charged offense.
 The record before us affirmativelyestablishes that Sion knowingly and intelligently entered into this pleaagreement and that there was a sufficient factual basis in the record tosupport the plea. Given this fact, the trial court abused its discretion whenit permitted Sion to withdraw his plea and it is wholly unnecessary for us toaddress Sion's claim of prejudice or manifest injustice. See Williams(reversal of conviction for lack of factual basis * for plea notrequired unless record discloses that non-compliance with rule resulted inprejudice of harm to defendant) (citing Richardson v. State, 246 So.2d 771, 774 ( Fla. 1971)); Saint Aime, 723 So.2d at 875 ("Asthere was a sufficient factual basis for the plea, defendant's correspondingclaim of ineffective assistance of counsel by allowing a plea in the absence ofsuch also fails.").
Fla.App. 3 Dist.,2006.
State v. Sion
942 So.2d 934, 31 Fla. L.Weekly D2861
END OF DOCUMENT
The above case is a Florida case from 2006 that demonstrates that the Richardson case can be applied after the entry of a plea but before sentencing. If you read the paragraph numbered "5", you will see where it cites to Richardson for the proposition that a plea may be withdrawn where there is a showing of "prejudice" to the defendant.
Please let me know if anything requires clarification.
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I spent about 2.5 hours using my search engine looking up cases discussing Richardson, I did not find a single case that had the specific issue of a defendant entering a plea, a discovery issue arising and then having a Richardson hearing to determine whether there was a violation.
On the negative side, I found no case on-point indicating that such conduct creates a violation. On the plus side, I found no case on-point indicating that such conduct does NOT create a violation. While I cannot absolutely state that no such case exists, my fairly exhaustive research did not yield a single case. The case I gave you is the best case I found. As I stated earlier, this case clearly shows that the Richardson analysis applies to the timeframe between the entry of the plea and the court imposing sentencing.
As a note, I suspect part of the problem is simply how this would work from a procedural prospective. Once a person enters a plea, it would be very rare for him to continue to pursue discovery and even more rare for the prosecutor to continue to bring forward evidence, evidence that might trigger the Richardson analysis. In fact, in over fifteen years of working in criminal court, I have never once heard of a Richardson hearing being conducted between plea and sentencing.
Your request was for a case describing a Richardson situation after plea but before sentencing. I put 2.5 hours into researching this issue for you and this case was the best thing I could find for you. I hope that you will appreciate my efforts and recognize that I cannot provide what does not exist.
As an attorney, I tend to speak in my language, which may not be easily understood by a non-attorney. It isn't intentional, just a by-product of the job. I'll try to explain again, let me know if it still doesn't make sense.
The Richardson case holds that any non-compliance with the rules of procedure that causes harm to the defendant must be addressed by the court. In the case I provided, it discusses:
- a defendant enters a plea
- rules of procedure not being followed
- a showing of harm or prejudice to the defendant
- the defendant would then have legal recourse
And yes, I would agree that the Richardson analysis applies after the entry of a plea and before sentencing.
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