AKEEM R. WELCH
v.
STATE OF FLORIDA
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Akeem Welch appealed the denial of his motion to withdraw his guilty plea after resentencing. The court reversed because the trial court failed to appoint conflict-free counsel before summarily denying the motion, violating his right to assistance of counsel at this critical stage.
The trial court erred by denying Welch's rule 3.170(l) motion without appointing conflict-free counsel. A motion to withdraw plea after sentencing is a critical stage at which an indigent defendant is entitled to court-appointed, conflict-free counsel. This error is not subject to harmless error analysis.
[1] A defendant is entitled to court-appointed, conflict-free counsel at the critical stage of proceedings involving a motion to withdraw plea after sentencing filed pursuant…
[2] The failure to appoint counsel for an indigent defendant seeking to withdraw a plea after sentencing is not subject to harmless error analysis.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A rule 3.170(l) motion to withdraw plea is a critical stage of the proceedings during which an indigent defendant is entitled to court-appointed, conflict-free counsel.”
Establishes that counsel is a constitutional right at this stage of proceedings
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceWelch filed a motion to correct an illegal sentence in November 2020, which was granted on appeal in a prior decision. The trial court resentenced him…
The full statement of facts, procedural history, and disposition for this case are member content.
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VILLANTI, Judge. Akeem R. Welch appeals an order denying his motion to withdraw plea after sentencing filed pursuant to Florida Rule of Criminal Procedure 3.170(l). We have jurisdiction. See art. V, § 4(b)(1), Fla. Const. We agree with the State's concession of error and reverse. In November of 2020, Welch filed a motion to correct illegal sentence pursuant to rule 3.800(a). We reversed the denial of his claim
in ground one that the trial court illegally imposed one of his HFO sentences. See Welch v. State, 337 So. 3d 517, 518 (Fla. 2d DCA 2022).
After the trial court resentenced Welch, he timely filed a motion to withdraw plea after sentencing pursuant to rule 3.170(l).
The court summarily denied the motion without appointing counsel for Welch. A rule 3.170(l) motion to withdraw plea is a critical stage of the proceedings during which an indigent defendant is entitled to court-appointed, conflict-free counsel. See Smith v. State, 849 So. 2d 485, 485-86 (Fla. 2d DCA 2003); see also Lester v. State, 820 So. 2d 1078, 1078 (Fla. 1st DCA 2002) ("[O]nce a defendant indicates his desire to avail himself of the rule 3.170(l) procedure, the trial court must appoint conflict-free counsel to advise and assist the defendant in this regard.").
This error is not subject to harmless error analysis. See Smith, 849 So. 2d at 486. Welch argues and the State concedes that the trial court erred by summarily denying his rule 3.170(l) motion without appointing counsel.
Accordingly, we reverse the order denying the motion and direct the trial court to appoint conflict-free counsel to advise and assist Welch with the motion.
Reversed and remanded. CASANUEVA and ATKINSON, JJ., Concur. Opinion subject to revision prior to official publication.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Lester v. State, 820 So. 2d 1078 (Fla. 1st DCA 2002)
- Vermont Smith v. State, 849 So. 2d 485 (Fla. 2d DCA 2003)
- Akeem R. Welch v. State (Fla. 2d DCA 2023)