George Lyman (not his real name) plead no contest on 2/9/15 with the specific understanding that his driver license would be suspended for six months. Martin County Judge Darren Steele followed the plea agreement and imposed the 6-month suspension.
Turns out that the Florida Department of Highway Safety and Motor Vehicles (DHSMV) had different ideas. Lyman received notification that his license would be revoked for 10 years. Lyman felt cheated and misled. Lyman retained Attorney Jeffrey H. Garland on 6/11/16 to consider grounds for a post-conviction relief (PCR) motion. Attorney Garland investigated and on 7/22/16, filed a PCR motion alleging precisely what Lyman was complaining about.
The PCR motion put forth three claims for relief: 1. Lyman’s lawyer failed to advise him what would be the actual period of revocation; 2. Lyman’s lawyer failed to advise him that prior uncounseled DUI convictions cannot be used to enhance a DUI criminal sentence, but can be used by DHSMV to impose a longer period of license revocation; and 3. The plea entered on 2/9/15 was involuntary because of the affirmative misadvice on the period of license suspension or revocation. The State conceded error and agreed that the plea should be set aside, which was done on 10/19/16.
There is a difference between a lawyer’s generalized statements and “positive misadvice”. Lawyers will ordinarily warn about possible problems or benefits of a particular course of action. Yet no lawyer has 20-20 vision into the future. The law does not require the lawyer to be able to foresee all future events. However, there may be grounds for a PCR motion when the lawyer provides specific statements – “positive misadvice” – which induce the accused to plea. In this case, Lyman was misled into pleading by specific on-the-record statements that said his license would be suspended for no more than six months. The criminal court did only suspend for six months, but DHSMV later revoked the license for 10 years. The plea hearing demonstrated that Lyman would not have “plead out” if he had been properly informed about the 10-year revocation. Few cases have such a clear record of “positive misadvice”.