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Writ of Error Coram Nobis & The Wood Decision
A recurring problem for criminal defense lawyers is presented by the DUI client with a prior conviction for the same offense. The prior often creates enhancement problems for the subsequent charge for which the client seeks representation. The problem can manifest itself in several ways.
Consider someone who is arrested for DUI in 1974. Informed at the arraignment that a guilty plea will result in a fine and a suspended sentence, he might well have decided to plead guilty, thus terminating an embarrassing and troublesome procedure. If he does so, that plea is likely entered without any understanding of the rights that are being waived, or whether the state had a case that it could possibly win at trial.
If the same person is again arrested for DUI in 1994 and retains you as defense counsel, your job is considerablly complicated by the 20 year old plea. For example, if the client pleads to the 1994 offense, the 1974 conviction will render him ineligible for a hardship license during the 6-12 month driver’s license suspension period which will be invoked. This will transpire automatically by action of the Department of Motor Vehicles; the judge has no discretion in the matter. The loss of driving prvileges is an extremely iimportant matter, whatever your client’s vocation. It can cripple the lifestyle of a retired librarian; it can economically devastate and insurance salesman. Also, many judges impose more severe penalties for a second offense even if the earlier conviction is 15 or 20 years old.
Another common occurence is a client that comes to your office with one or two prior DUI’s within the last 5 to 10 years and is now facing extremely harsh punishment because the sentencing judge is going to give a great deal of weight to those prior convictions. Typically, the first conviction was entered after the defendant pleaded guilty at first appearance or arraignment without he assistance of counsel and with little or no understanding of the consequesnces of the conviction he or she was about to receive. Judges typically do not inquire into the factual basis for the plea on a first DUI, and if they do so, it is a cursory examination at best. Even the defendant who believes he is not guilty and in fact, had a blood alcohol level below the legal limit may plead guilty just to “get it over with”.
Frequently a judge on a second or third DUI (or a first DUI with a BAC over .20) will ignor the precepts of the Hlad decision 585 So. 2d 928 (Fla. 1991)(an attorney must be appointed whenever the indigent defendant is facing a possible jail sentence of more than 6 months) and accept a plea without appointing counsel for the accused or obtaining a valid waiver of counsel. It is typical for the presiding judge to dispense with a point by point review of the requirements of Fla. R. of Crim. P. 3.172 and simply impose a sentence and move on. The defendant is usually happy because he is out of jail. It is only 5, 10 or 20 years later that he realizes the impact of this uniformed decision.
These are a few examples of the myriad of ways in which a prior DUI arrest and conviction, which seemed fairly easy to resolve at the time it occured, can come back to haunt a client who is charged with the offense in this day when it is the subject of heightened concern.
We have witnessed major changes in sentencing in the last several years, and an important part of those changes consists of imposing enhanced penalties for repeat offenders. We see it in state and federal drug offense penalties, in the fashionable “three striles and you’re out” provisions now being promulgated, and we see it all over the country in DUI/DWI sentencing. Of all the criminal laws which are likely to have an effect on the “everyday” citizen, DUI ranks at the top.
In response to the exposure which modern sentencing procedures entail, defense attorneys have become keenly interested in collaterally attacking or otherwise diminishing the impact of prior convictions. The common law writ of coram nobis is one vehicle which has proven to be very successful in this regard, and it will comprise the major topic of this presentation. Other avenues of relief include a motion to vacate a prior conviction for sentencing purposes only.
II. Writ of Error Coram Nobis: Background
When a defendant is not actually serving a sentence for the conviction he/she wants to challenge, a petition for writ of error coram nobis, addressed to the court of original jurisdiction, is a proper vehicle for collateral attack. For the incarcerated Florida inmate sentenced under state law, filing a motion for post-conviction relief based on Florida Rule of Criminal Procedure 3.850 is the correct procedure. Rule 3.800 covers the reduction and modification of sentences, and Rule 3.851 governs collateral relief in cases where the death sentence is imposed. A sample petition for writ of error coram nobis and supporting memorandum of law is included at the end of these materials.
In modern practice, the petition is normally addressed to the court of original jurisdiction. State v. Woods, 400 So.2d 456, 457 (Fla. 1981). It must allege a factual error as opposed to an error of law. In the language of one of the older cases on which modern use of the writ is predicated, it provides post judgement relief where by “strong and convincing proof” it can be shown that the trial result was based on a mistake of fact, unknown to the court, parties and counsel. The mistake has to be so serious that, had it been known at the time of judgement, it would have precluded entry of the judgement. Russ v. State, 95 So.2d 594 (Fla. 1957). Older decisions also state that the mistakes of fact on which the writ is predicated is a mistake which is not the fault of the court’s and which inheres in the judgement. Pike v. State, 139 So. 196 (Fla. 1931).
Coram nobis is an old procedure which is available in modern courts for criminal defendants who are not in custody for the conviction under challenge. The way in which DUI defendants are administered through the criminal justice system makes coram nobis especially helpful to many of them.
U.S. Constitutional Lineage of Coram Nobis Principles
Boykin v. Alabama, 395 US 238 (1969), is seen as the foundation on which coram nobis principles and standards stand, and understandably so. Two earlier cases, Jackson v. Denno, 378 US 368 (1964), and Carnley v. Cochran, 369 US 506 (1962), are important, Jackson for its concern with a “reliable determination of the voluntariness issue” in confessions cases and Carnley for requiring an affirmative showing that an offer of counsel was knowingly and intelligently refused in waiver of counsel cases. Other pre-Boykin decisions discussed in the guarantee against self-incrimination, the right to jury trial and the right to confront one’s accuser. Boykin brought all these principles together in one Supreme Court decision.
It is often the case that prior DUI pleas were entered without the advice of counsel. In general, the strength of a right to counsel claim is conditioned on whether a term of incarceration in excess of 6 months is potentially or actually imposed. Leading opinions which develop the issues are Hlad v. State, 585 So.2d 928 (Fla. 1991) and Baldasar v. Illinois, 446 US 222 (1979), which are discussed below.
The importance of all this for coram norbis purposes is that the client with a dated plea-based conviction waived the very rights addressed in these opinions, culminating in Boykin. Citing the cases is an effective tactic for persuading a trial judge that the circumstances of the waiver, which probably took place, after all, at a time when pleading to DUI was a much less serious matter than it is today, do not comport with United States Supreme Court standards. Guilty pleas are entered in Florida in accordance with Fla. R. Crim. P. 3.172 which thoroughly catalogs the rights being waived but the circumstances surrounding the plea may render the a rote recitation of or acquiescence in the language of that rule ineffective.
III. Writ of Error Coram Nobis & The Wood Decision
The DWLSR statute provides for felony enhancement upon a third conviction for DWLSR. It is often the case that the prior convictions which are used for enhancement purposes are often 10 to 20 years old. More often than not, these older convictions may have been entered into as a result of a plea without the assistance of counsel. As a result, a defendant may not have understood the rights they were waiving or the ramifications of entering their plea. A plea collquy, if it existed at all, may have only been a brief recitation of some of the essential requirements of Fla. R. of Crim. P. 3.172. The prior DWLSR conviction that seemed fairly easy to resolve at the time it occured may now come back to haunt a client who is again charged with the offense and now subject to felony enhancement.
A writ of error coram nobis used to be a useful vehicle for setting aside prior convictions. When a defendant was not actually serving a sentence for the conviction the defendant wanted to challenge, a petition for writ of error coram nobis addressed to the court of original jurisdiction was a proper vehicle for collateral attack. For the incarcerated Florida inmate senteced under state law, filing a motion for post-conviction relief based on Florida Rule of Criminal Procedure 3.850 was the correct procedure.
That all changed with the Florida Supreme Court’s decision in Wood v. State, 24 F.L.W. S240 (Supreme Court, May 27, 1999). Prior to the Wood decision there was a split of opinion between judicial circuits as to whether the two year time limit in rule 3.850 also applied to coram nobis petitions. See Wood v. State, 698 So.2d 293 (Fla. 1st DCA 1997); Malcolm v. State, 605 So. 2d 945 (Fla. 3d DCA 1992). The split of opinion was based on the First District Court of Appeals’ opinion that a coram nobis petition was essentially the same as a 3.850 motion and was therefore subject to the same time limitations.
The supreme Court had previously held the Rule 3.850 was patterned after the writ of error coram nobis and largely supplanted the writ for criminal defendants in custody. Richardson v. State, 546 So. 2d 1037, 1038-39. The evidence for this assertion was apparently found in rule 3.850’s genetic progeny, Title 28, section 2255 of the United States Code. Title 28, section 2255, on which rule 3.850 was based, contains a cryptic reviser’s note that indicates the federal section “restates, clarifies, and amplifies the procedure in the nature of the ancient writ of error coram nobis.” Based on the revisor’s note, the court held that the only viable use for the writ of error coram nobis was for petitioners who were not in custody, and therefore could not seek relief under rule 3.850. Id.
Because of the Richardson ruling, the First Circuit also held that the only continuing application for the writ of error coram nobis is the situation where the petitioner would have a viable claim under rule 3.850, but for the “in custody” requirement. Wood, 689 So. 2d at 293-94. Therefore, the two year time limit of 3.850 applied.
As mentioned above, the Supreme Court agreed with the First District’s analysis and ruled that the two-year time limit was applicable to writs of error coram nobis. The Supreme Court’s main motivation in applying the time limit seemed to be a desire to prevent circumvention of rule 3.850 through coram nobis. Wood 24 F.L.W. S240. The Supreme Court also held that a petitioner for a writ of error coram nobis will still have to show that they could not have discovered the alleged facts by the use of due diligence, and that the relief sought through the writ of error is not a time-barred post-conviction remedy. Id.
The Supreme Court went on to hold that Wood’s petition was not time-barred under the two year limitation, as the time limitation had just been imposed by the court. Id. The court may also have been concerned that Wood was never actually in custody and therefore never had the opportunity to seek relief under rule 3.850. Id. (J. Wells, concurring). The court also held that all defendants adjudicated prior to May 27, 1999 would have two years to file claims traditionally cognizable under coram nobis. Id. The court made no mention of whether laches could still bar a coram nobis petition.
The Supreme Court then took the slightly bizarre step of amending rule 3.850 to delete the “in custody” requirement so that both custodial and noncustodial movants may seek relief under the rule, eliminating the need for the writ of error coram nobis. Id. The court then went on to say:
By extending rule 3.850 relief to noncustodial claimants, we do not narrow in any way the relief hertofore available to defendants under coram nobis. All claims cognizable under the writ are now available to noncustodial movants under the rule. Id. The effective date of the rule change was May 27, 1999, the date of the order. Id. The court ordered that it’s revisions be published in the Florida Bar News, and that the rule be reviewed for comment, but this portion of the ruling has little realistic effect, as the court ordered that the amended rule 3.850 become effective immediately, irrespective of motions for rehearing in the substantive case. Id.
Since the Supreme Court’s ruling in Wood, at least one court has allowed a previously time-barred petition for writ of error coram nobis to proceed. Kalici v. State, 24 FLW D1714 (Fla. 4th DCA 1999). This writ was filed prior to the Supreme Court’s decision in Wood. See also McHugh v. State, 24 FLW Supp. D1606a (19th Jud. Cir., July 7, 1999).
The Supreme Court’s language in Wood seems to indicate that the writ of error coram nobis is no longer available as a remedy, unless the writ was actually filed prior to May 27, 1999. First, the Supreme Court amended rule 3.850, noting that “all claims cognizable under the writ are now available to noncustodial movants under the rule.” Wood, 24 FLW at S241. This eliminates the need for a writ of error coram nobis, since the court previously held in Richardson that the writ’s only purpose was to provide rule 3.850 – style relief to noncustodial movants. That need is obviated by the amendment. Further, the court does not indicate that coram nobis petitions are available for the next two years; rather, it ruled that “defendants…shall have two years from the filing date within which to file claims traditionally cognizable under coram nobis” Id. (emphasis added). Note that the court does not specifically say “within which to file a writ of coram nobis”. The language of the ruling seems to indicate that these claims can be filed under a rule 3.850 motion, noting Wood’s specific waiver of the traditional two-year time limitation. The only use for an actual petition for writ of error coram nobis after Wood is to revive a previously filed writ that was denied on the basis of the two-year time bar.
As a footnote, there remain two lingering questions. The first is whether laches still applies as a defense for the state. Although Wood addresses “due diligence,” it does not mention equitable defenses. However, the defense of laches is probably still available to the state, as post conviction motions may generally be barred by laches. Smith v. State, 506 So.2d 69 (Fla. 1st DCA 1987). Laches is an affirmative defense (discussed in more detail below) incorporating an equitable principle, which must be pleaded and proven by the state if they assert it. To claim laches, the state must show a delay by the person asserting a legal right and resultant injury or prejudice by reason of the delay, or a change in position or condition which renders it inequitable to enforce the legal right. Hoffman v. Foley, 541 So. 2d 145, 146 (Fla. 1st DCA 1989). In Smith showing that during the ten years it took the prisoner to bring his claim the state had destroyed the relevant files, resulting in prejudices to the state’s ability to defend the propriety of the conviction.
The second question is whether the Supreme Court’s action in Wood is legal. The Court took the specific step of declaring that “all claims cognizable under the writ are now available under [rule 3.850],” thereby avoiding the assertion that they were retroactively limiting Woods’ constitutional rights. However, the Court did not follow the circumscribed procedure for amending criminal rules. Instead, it put the cart before the horse, amending the rule and then making it available for committee review and comment. However, given the Supreme Court’s seemingly unfettered rule making authority, this is probably not a major issue. In sum, it seems as if coram nobis is dead, at least in the form of the ancient writ. Currently, all coram nobis petitions must be brought under rule 3.850, Fla. R. Crim. P., the only caveat being that the two year time limit is extended to May 27, 2001 for petitioners sentenced prior to May 27, 1999.
A petitioner for coram nobis relief should always allege prejudice, and you must be prepared to argue actual prejudice on behalf of your client. There are any number of ways in which a defendant can argue prejudice. A lack of counsel may have led to pleading to a winnable case. Having an attorney does not in itself preclude an ill-informed plea. Bad advice from counsel may also result in pleading to a winnable case, and that is prejudical. Pleas accepted under Rule 3.172, requires the trial judge to ensure that the rights which are being waived by the defendant are fully understood. The judge is also required to explain the consequences of waiving those rights. Waiving ones rights unknowingly, then suffering the unanticipated consequences is arguable prejudicial. See Koenig v. State, 597 So. 256 (Fla. 1992). Often clients pleaded to DUI when it was treated almost as a mere traffic ticket had no idea that there might be dire sentencing consequences later if a second DUI were charged. The question arises whether prejudice arises at the time the original unintelligent, involutary plea is entered or only later when its consequences make themselves at a time when a subsequent charge is leveled. The language of Boykin seems to indicate that entering a plea in violation of a defendant’s rights is in itself prejudicial. Prosecutors argue otherwise, as would be expected.
Regarding the distinction between counselled and uncounselled pleas, which deserves a presentation all its own, the following remarks are intended as a synopsis. In uncounselled plea cases, the threshold concerns of Boykin should be stressed. If a basic constitutional right is relinquished unknowingly of involuntarily by an unrepresented client, the language in Boykin suggests that the defendant was prejudicated thereby and coram nobis relief should be available.
If the defendant was represented, another line of cases must be addressed. In Baldasar v. Illinios, 446 US 222 (1979), the United States Court accepted Justice Balckmun’s “bright line” approach which holds that for constitutional purposes, a criminal defendant is automatically entitiled to an attorney only where the offense involved an offense which subjects the defendant to 6 months or more potential jail time, or to some actual jail time. The Florida Supreme Court adopted this view in Hlad v. State 585 So.2d 928 (Fla. 1991). In a later first degree murder case mentioned above, Koenig v. State 597 So.2d 256 (Fla. 1992), the Florida Supreme Court ruled that even where counsel is present and the client signed an acknowledgment of rights form it is up to the judge to ascertain that the requirements of knowing and voluntary plea under Rule 3.172 are met. It is always worth arguing that whatever potential of actual sentence was involved in the prior conviction, and whether or not the defendant was represented, the requirements of Rule 3.172 must be complied with or a valid conviction. See Dugart v. State, 578 So.2d 789 (Fla. 4th DCA 1991).
The issue of prejudice was addressed in Richardson v. State, 246 So.2d 771, 774 (Fla. 1971), where the Supreme Court stated: “(W)e hold that the violation of a rule of procedure prescribed by this Court does not call for a reversal of a conviction unless the record discloses that non-compliance with the rule resulted in prejudice or harm to the defendant.”
This principle was underscored in Williams v. State, 316 So.2d 267 (Fla. 1975). The Williams court affirmed a Second District decision that where a trial court failed to determine a factual basis for a guilty plea under the predecessor of Rule 3.172, the failure did not warrant reversal and a vacation of the plea absent a showing of prejudice by the defendant. The Williams Court relied for its holding on Richardson, and on its approval of ABA Standard 2.1 which stated: “The court should allow the defendant to withdraw his plea of guilty or nolo contendere whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice.” 316 So.2d 273. Also see Fuller v. State, 578 So.2d 887 (Fla 1st DCA 1991) (failure to comply with oral sentencing colloquy under Rule 3.172 does not warrant reversal “in absence of” an allegation of prejudice of manifest injustice), quashed on other grounds, 595 20 So. 2d 20 (Fla. 1992).
In a footnote, the Williams Court distinguished two opinions which may be cited for the proposition that an honest misunderstanding contaminating the voluntariness of the plea is sufficient to render it defective. Costello v. State, 260 So.2d 198 (Fla. 1972); Brown v. State, 245 So.2d 41 (Fla. 1971) 316 So. 2d 267, 274 n. 7.
The requirement that the time between judgement and filing the petition must be reasonable under the circumstances suggests that the state will ordinarily claim laches in a case involving considerable delay. Laches is an affirmative defense incorporating an equitable principle. An affirmative defense must be pled and proven, and an equitable principle like laches requires a showing of delay by the person asserting a legal right and resultant injury or prejudice by reason of the delay, or a change in position or condition which renders it inequitable to enforce the legal right. Hoffman v. Foley, 541 So.2d 145, 146 (Fla. 1st DCA 1989). In Smith v. State, 506 So.2d 69 (Fla. 1st DCA 1987), an incarcerated defendant was denied post-conviction relief. The state prevailed on its laches claim by showing that during the ten years it took the prisoner to bring his claim, the state had destroyed the relevant files, resulting in prejudice to its ability to defent the propriety of the conviction. If the state’s witnesses for the original proceeding are still available, and you can demonstrate that to the court, it will undercut the state’s claim of prejudice. See also Gregersen v. State, 714 So.2d 1195 (Fla. 4th DCA 1998).
In Fox v. Kelso, 911 F.2d 563 (11th Cir. 1990), the Court held that once a Georgia DUI defendant challenged a guilty plea by way of a habeas corpus and passes the Boykin threshold of noncompliance, the state assumed the burden of demonstrating that the plea meets constitutional standards. Once the defendant denied that he had entered a pleas of guilty to the misdemeanors and by stated that he had not known what he was signing (or that the signatures were not his), the defendant placed the question of whether his plea was obtained constitutionally at issue. The state in Fox based a laches defense on the contention that it had been prejudiced by the passage 10 years between the judgement and the habeas petition. The court seemed to treat the prejudice claim as being superseded by the state’s burden to show by clear and convincing evidence that the plea was intelligent and voluntary, a burden which was placed on the state once the threshold Boykin criteria had been met.
In addition, the Eleventh Circuit also tendered an opinion which dramatically underscores the requirement that a plea be truly knowing and voluntary. In Tower v. Phillips, 979 F.2d 807, 815 (11th Cir. 1992) the court stated: In order for Tower’s pleas to have been knowing and voluntary, he must have been reasonably informed of the nature of the charges against him, the factual basis underlying those charges, and the legal options and alternatives that are available. LoConte, 847 F2d at 751. Courts look at the totality of information held by the defendant at the time he makes his plea, and not merely the information communicated at the plea hearing, to determine if the defendant was adequately informed to make a knowing and voluntary plea. Therefore, the fact that the trial court properly conducted the plea hearing does not guarantee that the plea is consititutionally valid.
VI. Optimistic Trends
Countering the inertia which prevents courts in general from being enthusiastic about entertaining challenges the past results of procedures still being used, is a trend in which state and federal judges treat coram nobis petitions “liberally,” that is, in such a way as to undo apparent injustice. In Malcomb v. State, 605 So.2d 945 (Fla. 3d DCA 1992), the petitioner had been convicted but his conviction had been reversed.
Nonetheless, he was subsequently convicted of possession of a firearm by a convicted felon. The later conviction was based on an error of fact, as is required for coram nobis relief. According to the classic formulation of State v. Woods, 400 So.2d 456, 457 (Fla. 1981), however, post-conviction relief should not be accorded because the error would have been discovered by Mr. Malcomb’s former attorney had due diligence been exercised. The Third DCA decided that the standard could properly be relaxed. “(W)e believe the interests of justice require us to relax this requirement so that the conviction of an innocent man may be corrected… (I)t is better to bend a rule of procedure than to use the rule to convict an innocent person.” 605 So.2d 945, 947-948.