In a recent court case in Tampa, Florida, a person was standing before a judge under the wrong impression that they were not heading to prison for stealing a very expensive generator. See Lehmkule v. State, Case Number 2D08-4554 (Fla. 2nd DCA, October 16, 2009). This was despite the fact that the victims wanted the defendant to goto jail and the prosecutor was not recommending any departure from the sentencing guidelines.
The reason the defendant was under the impression that he was not going to jail was because his lawyer had told him that the Florida Sentencing Guidelines allowed the judge to issue a downward departure because the need for restitution outweighed the need for jail. While it is true that this is a recognized ground for departure, the lawyer apparently forgot to tell the client that this ground only works when the victim wants the restitution more than the jail time.
The defendant had entered his plea and was in the middle of the sentencing hearing when it was discovered by the defense attorney that the judge was not going to grant a downward departure on that ground because the victim was emphatic that they wanted the defendant to goto jail. In fact, the victim believed that the defendant would never make the restitution and was willing to forgo restitution in favor of punishment. Well, as one can imagine, the defense attorney was not feeling too good at that moment and neither was his client.
The defense attorney had a choice. Option A was to proceed with the sentencing hearing and wish his client best of luck in prison. Option B was to ask the court to allow his client to withdraw his plea so that he could proceed presumably with a trial. Neither were good choices. Option A was not a bad choice because then the defense attorney could bury the case and and hope that his client would not know any better and serve out his time. However, this defense attorney demonstrated character and chose option B.
The defense attorney stated the following to the court:
Your Honor, that at this point if you’re not willing to downward departure [sic] I’m moving to withdraw the plea based upon ineffective assistance of counsel.
I told Mr. Lehmkuhle I thought there was a strong possibility of him being downward departed since the need for restitution to the victim, especially the people of Haiti was so great. And we’ve heard that it is, but they still — but the victims in this case still want prison. I was ineffective. I’m asking to withdraw his plea today if you’re unwilling to downward depart, Your Honor.
This admission by the defense attorney was his attempt to establish good cause for the withdrawal of the plea prior to sentencing. The trial judge dismissed this attempt and proceeded to sentence the defendant to five years prison. Luckily for the defendant, the district court of appeal took pity on the poor soul and has allowed him to withdraw his plea.
The lesson that should be drawn from this experience is the need for attorneys who practice in criminal courts to be competent in the legal advice that they provide to their clients. Too often, clients want definite results. The problem is no two cases are identical. Some people will hire attorneys based upon a verbal guarantee made by the attorney. For example, “If you hire me, then I promise you that you will not see any jail.” This is wrong and if you hear an attorney giving you a guarantee, then you probably are not going to be happy at the end of your case. Clients must be willing to recognize that the practice of law is not an exact science. Competent attorneys will do their best for their clients, but in the end we cannot give you a guarantee as to a result. Yes, we can predict, but in making those predictions, the prediction should always be based upon a proper understanding of the law and how it works. The Florida Sentencing Guidelines are complicated and they must be consulted prior to entering a plea so that a proper sentence can be counseled on. If you find yourself being faced with a potential to enter a plea, make sure you get all of the facts and how the law may affect your future prior to committing yourself to an attorney who may or may not be confessing error to a court at your sentencing hearing.