District Court of Appeal of Florida,

Third District.

The STATE of Florida, Appellant,

v.

Nessim Jaime SION, Appellee.

No. 3D05-2824.

Nov. 15, 2006.

Background:
After defendant entered a plea of nolo contendere to information charging him
with first degree grand theft, defendant moved to vacate and set aside his
plea. 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: The
District Court of Appeal, Green, J., held that defendant should not have been
permitted to withdraw his plea.

Reversed
and remanded.

West Headnotes

[1] Criminal Law 110



















273(4.1)

110
Criminal Law

110XV
Pleas

110k272
Plea of Guilty

110k273 In
General

110k273(4)
Requisites and Proceedings for Entry

110k273(4.1) k.
In General. Most Cited Cases

The
main purpose for ascertaining a factual basis for a plea is to prevent a
defendant from mistakenly pleading to the wrong offense. West's F.S.A. RCrP Rule 3.172(a).

[2] Criminal Law 110

273(4.1)

110
Criminal Law

110XV
Pleas

110k272
Plea of Guilty

110k273 In
General

110k273(4)
Requisites and Proceedings for Entry

110k273(4.1) k.
In General. Most Cited Cases

When
a trial court fails to establish in the record the requisite factual basis for
a plea of guilty, the vacation of the guilty plea is not the sole remedy. West's F.S.A. RCrP Rule 3.172(a).

[3] Criminal Law 110

274(1)

110
Criminal Law

110XV
Pleas

110k272
Plea of Guilty

110k274
Withdrawal

110k274(1) k.
In General. Most Cited Cases

In
order 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 clear
prejudice has occurred.

[4] Criminal Law 110

273(4.1)

110
Criminal Law

110XV
Pleas

110k272
Plea of Guilty

110k273 In
General

110k273(4)
Requisites and Proceedings for Entry

110k273(4.1) k.
In General. Most Cited Cases

There
was, in fact, a factual basis in the record for defendant's plea to the charged
offense apart from his stipulation and stipulation of his counsel; arrest affidavit
was part of record before trial court at the time of defendant's plea, and
although trial court did not specifically make reference to this affidavit, the
court did acknowledge that it had enough proof in court to send this case to
jury for its determination of defendant's guilt, arrest affidavit sufficiently
set forth factual basis for charged offense of first degree grand theft, and
fact that defendant began to immediately make Restitution to victim upon
learning of criminal investigation into matter was sufficient to constitute
tacit admission of guilt by defendant to charged offense. West's F.S.A. RCrP Rule 3.172(a).

[5] Criminal Law 110

274(3.1)

110
Criminal Law

110XV
Pleas

110k272
Plea of Guilty

110k274
Withdrawal

110k274(3)
Grounds for Allowance

110k274(3.1) k.
In General. Most Cited Cases

Since
record affirmatively established that defendant knowingly and intelligently
entered into plea agreement and that there was a sufficient factual basis in
the record to support the plea, defendant should not have been permitted to
withdraw 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.

GREEN, J.

This
is an appeal from an order vacating appellee Nessim Jaime Sion's plea to first
degree grand theft on the grounds that a factual basis for the plea was not
established other than through stipulation of counsel. We reverse as we
conclude that apart from the stipulation of counsel, the record before the
court disclosed a factual basis for the plea.

Sion
was charged by information with one count of first degree grand theft of
currency 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 the
doctor and offered the doctor an opportunity to purchase stocks in a particular
company. The doctor paid Sion $103,000 over a period of six months. At some
point, Sion gave the doctor a Stock Certificate for $25,000 in shares. This
stock certificate later proved to be a counterfeit certificate for shares that
were never owned by Sion. The arrest affidavit further averred that upon
learning of the police investigation into the matter, Sion made partial
restitution of $25,000 to the victim and surrendered to the police in the
presence of his attorney.

On
July 24, 2003, Sion entered a plea of nolo contendere to the information in
exchange for a withhold of Adjudication, and two years of Probation with
special conditions.^FN1 During the plea colloquy, Sion was
questioned as to his understanding of the charge against him; his understanding
of *936 the terms of the plea agreement and the consequences of
violating the conditions of probation; whether he was entering the plea freely
and voluntarily and not under the effects of drugs; whether he understood the
constitutional rights that he was relinquishing by entering the plea; and
whether he was satisfied with the services of his attorney. The trial court
also asked Sion whether he understood that by taking his plea, Sion could get
deported or be subjected to other negative immigration consequences if he was
not 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 business
purposes;

3) Sion enter and successfully complete the theft course during
the second year of probation;

4) Sion serve 75 hours of community service at the rate of 10
hours per month; and

5) Sion pay court costs.

FN2. The
court inquired as follows:

[Court]: Do you understand that this plea can get you deported if
you are not a United States citizen?

[Defendant]: Yes. I am not a citizen.

[Court]: You are not a citizen?

[Defendant]: No.

[Court]: So do you understand that this plea can get you deported
or some other negative immigration consequences?

[Defendant]: Yes.

[Court]: Do you understand that?

[Defendant]: Yes, I do understand.

During the course of the plea, the trial court stated that it
found a factual basis for the plea and both the defense counsel and Sion
stipulated as follows:

[Court]: I find a factual basis for the plea, does the defense so
stipulate and waive PSI?

[Defense Counsel]: For purposes of the plea.

[Court]: I find proof in court enough for me to give your case to
a jury so the jury would have had to decide if you were guilty or if you were
not, but I find that you do not want to go to trial, I find that you do want to
take this plea. I also find that you are alert, intelligent and you understand
the charges against you and the consequences of the plea you have agreed to. I
find you have been represented by a very good lawyer, Mr. Darwaresh, with whom
you say you are satisfied with. I also find that you made the plea agreement
freely, voluntarily and without any undo promises of Coercion. Did you
understand those findings that I just made?

[Defendant]: Yes, I did. In the legal terms that you used, I think
I understand.

[Court]: Do you agree with what you understood me to say?

[Defendant]: Yes.

On
July 22, 2005, Sion moved to vacate and set aside his plea pursuant to Rule 3.850, Florida Rules of Criminal
Procedure. He claimed that his plea was fundamentally deficient because the
court failed to ascertain independently whether there was a factual basis for
the plea apart from the stipulation of counsel. The only prejudice alleged was
that at the time Sion was out of the country on business and was attempting to
renew his visa to reenter the United States, but could not do so because of the
plea.^FN3 The trial court denied this
post-conviction motion as legally insufficient.

FN3.
Sion had completed his probation at this time.

Sion
appealed this order to this court in August 2005. On September 29, 2005, the
trial court directed counsel to move this court to relinquish Appellate
jurisdiction for the trial court to reconsider its order. This court
relinquished jurisdiction to the trial court. In a subsequent order, the trial
court reversed itself and issued an order granting Sion's motion to vacate and
set 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 record
is insufficient." The State then commenced the instant appeal.

The
State argues that although the transcript of the plea colloquy does not reflect
a recitation of the facts supporting a factual basis for the plea in the
record, 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 is
misplaced, as Koenig
involved a death penalty plea where there was absolutely no record evidence of
the crimes to which the defendant pled. We agree.

[1][2][3] Prior to accepting a plea of guilty or
nolo contendere, the trial court must be satisfied both that the plea is
voluntarily 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 a
defendant 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 in
employing the procedure to be used to gather the factual information necessary
to establish the elements of the offense to which the defendant has entered a
plea of guilty.

We hold that the court may satisfy itself by statements and
admissions made by the defendant, his counsel, and the prosecutor; by factual
evidence heard or filed in the cause, i.e. preliminary hearings, motions to
suppress, or depositions taken in the cause. Under appropriate circumstances,
the presentence investigation report may be used to present this factual
information to the trial court. These are not the exclusive means for a trial
court to reach a determination. The trial court is free to utilize whatever
procedure is best for the particular case before it to ensure that the
defendant 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 the
source 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 basis
for a plea of guilty, the vacation of the guilty plea, however, is not the sole
remedy. Id.
Indeed, in order 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 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).

[4] In the instant case, we find no merit
to Sion's assertion that there was no factual basis in the record for his plea
to the charged offense apart from his stipulation and the stipulation of his

counsel. The arrest affidavit was a part of the record before the trial court
at the time of Sion's plea. Although the trial court did not specifically make
a reference to this affidavit, the court did acknowledge that it had enough
proof in court to send this case to a jury for its determination of Sion's
guilt. The arrest affidavit sufficiently set forth a factual basis for the
charged 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 restitution
to the victim upon learning of the criminal investigation into this matter.
This, we think, was sufficient to constitute a tacit admission of guilt by Sion
to the charged offense.

[5] The record before us affirmatively
establishes that Sion knowingly and intelligently entered into this plea
agreement and that there was a sufficient factual basis in the record to
support the plea. Given this fact, the trial court abused its discretion when
it permitted Sion to withdraw his plea and it is wholly unnecessary for us to
address Sion's claim of prejudice or manifest injustice. See Williams
(reversal of conviction for lack of factual basis * for plea not
required unless record discloses that non-compliance with rule resulted in
prejudice of harm to defendant) (citing Richardson v. State, 246 So.2d 771, 774 ( Fla. 1971)); Saint Aime, 723 So.2d at 875 ("As
there was a sufficient factual basis for the plea, defendant's corresponding
claim of ineffective assistance of counsel by allowing a plea in the absence of
such also fails.").

Reversed
and remanded.

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.

.

I hope you found my answer helpful. If so, please click on a positive rating for my answer. This is necessary for me to be paid for my work and so that I can get credit for assisting you. Even if you are a subscription member, you will need to provide a positive rating. Your question will not close, and you will still have the opportunity to follow-up if needed. Leaving a bonus and positive feedback is not required, but doing so is certainly appreciated! Thank you and good luck!

.

Also, several customers have asked how they may direct a question to me in particular. If you specifically want me to assist you in your legal matter, just put "FOR JOSEPH" in the subject line and I will gladly pick up the question as soon as I am on-line.

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.

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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.

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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.

.

I hope you found my answer helpful. If so, please click on a positive rating for my answer. This is necessary for me to be paid for my work and so that I can get credit for assisting you. Even if you are a subscription member, you will need to provide a positive rating. Your question will not close, and you will still have the opportunity to follow-up if needed. Leaving a bonus and positive feedback is not required, but doing so is certainly appreciated! Thank you and good luck!

.

Also, several customers have asked how they may direct a question to me in particular. If you specifically want me to assist you in your legal matter, just put "FOR JOSEPH" in the subject line and I will gladly pick up the question as soon as I am on-line.