James Appeal 2

IN THE CIRCUIT COURTOF THE TENTH JUDICIAL CIRCUIT IN AND FOR POLK COUNTY, FLORIDA

STATE OF FLORIDA Plaintiff, -VS-

Case No: CF06-001831

JAMES F. SHUNK Defendant, ________________________/ MOTION FOR A REHEARING Comes now the defendant, James F. Shunk, pro se and files this Motion for a Rehearing pursuant to Rule 3.850(g) of the Florida Rules of Criminal Procedure concerning this Honorable Court’s decision to deny the defendant’s Motion for Post Conviction Relief on the 9th day of July, 2008. As grounds in support of this cause the defendant sets forth the following: 1. On 2/1/08 the defendant filed a rule 3.850 Motion For Post Conviction Florida Rules Relief (Florida Rules of Criminal Procedure) in this Honorable Court. `

2. On 4/11/08 this Honorable Court issued its Show Cause Order

directing the State Attorney’s Office to respond to the defendant’s allegations in said motion.

3. On 6/10/08 the office of the State Attorney responded to this Honorable Court’s Order. 4. On 6/20/08 the defendant filed his Response to the State’s reply. 5. On 7/09/08 This Honorable Court issued its order denying the defendants Post Conviction Motion stating that grounds one and two, are an attempt to go behind the plea and are, therefore, procedurally barred or otherwise lack legal support. The defendant submits that this Honorable Court has misapprehended the defendant’s arguments. Ground one in the defendants motion is not an attempt to go behind the plea, but is in fact a legal conclusion of Florida Law established by the Florida Supreme Court in Squires v. State, 558 So.2d 401, 403 (Fla.1990). Defense counsel has duty to investigate his client’s case and a claim of ineffective assistance of counsel for failure to investigate the laws in regards to how his client is charged by the State of Florida is not a procedurally barred claim Under Rule 3.850 Fla. R. Crim. Pro, and cannot be considered an attempt to go behind the plea. Had the defendant known at the time he was entering his plea that he was entering a plea higher offense than allowed by law, he would not have entered his plea at all, he would have gone to a jury trial.

5a. The very fact that the defendant was not made aware of the legal definition of what constituted a Burglary of a Dwelling as opposed to Burglary of a Structure, is also evidence that the defendants plea could not have been voluntary, knowingly, and intelligently entered. The defendant entered his pleas under false pretences because his attorney failed to investigate the alleged dwelling he is accused of breaking into. Further, this Honorable Court is required to attach portion of the record showing where the defendant is not entitled to relief. Nothing in this court’s order dening relief and/or its attachment in the instant case shows where the defendant is not entitled to relief on this particular argument. See: McLin vs. State, 827 So.2d 94 (Fla2002), on remand 949 So.2d 1123, rehearing denied. Further, in order for this court to deny the defendants motion in the instant case without attaching portions of the record, it must state its rationale in its decision. The court herein simply adopted the argument of the State. This court should reconsider its decision on this issue. 6. Ground Two of the defendant’s motion is also not procedurally barred. The defendant met all the requirements for a claim of ineffective assistance of counsel for failure to investigate and call a witness. The defendant requested his attorney to investigate and call the

said witness but counsel failed to do so. The defendant further attached a statement under oath from said witness, to his motion as evidence to establish his claim. This court failed to acknowledge said statement without rearguing this claim. The defendant would like to point out to the court that an evidentiary hearing is necessary to at least ask defense counsel why he failed to contact and/or call said witness as a witness of the court to establish the fact that the building the defendant is accused of breaking into was in fact being used as a dwelling or a structure. The difference between the two is a matter of either a second degree felony or a third degree felony conviction. Further, nothing in this court’s order denying relief and/or its attachments in the instant case shows where the defendant is not entitled to relief on this particular argument. See: McLin v. State, 827 So.2d 948 (Fla. 2002), on remand 949 So.2d 1123, rehearing denied. Further, in order for this court to deny the defendant’s motion in the instant case without attaching portions of the record, it must state its rationale in its decision. The court herein simply adopted the argument of the state. 7. On Ground Three of the defendant’s motion this court adopted The state’s response, i.e., this claim should be denied because it fails to show counsel was deficient or that the defendant was prejudice. Under

the Strickland v. Washington, Supra, test the defendant must establish that counsel’s representation fell below an objective standard of reasonableness, 446 U.S. at 688, 104 S.Ct. 2052. The court informed the defendant that the maximum sentence the defendant was facing was Fifteen (15) years. Defense counsel led the defendant to believe the same thing. At no time was the defendant made aware that he could be sentenced as a Youthful Offender and the maximum sentence he could face as a Youthful Offender. Defense counsel has a duty under Rule 3.171, 3.172 and rule 3.173 Fla. R. Crim. Pro., to explain to his client all matters involved with the entry of a guilty plea. Otherwise, the plea cannot be voluntarily, knowingly, and intelligently entered. For counsel to allow his client to enter a plea not knowing the consequences of his actions, it is safe say that counsel representation fell below the objective standard of reasonableness. Counsel told the defendant that he failed to score out to 44 points and that he could receive any non-state prison sentence. Nothing was ever mentioned concerning a sentence as a Youthful Offender. The defendant was under the impression at the time that he entered a plea to his violation that he would receive a county jail sentence and it was defense counsel who led him to believe this fact and had the defendant known he could be

sentenced as a Youthful Offender he would not have entered his plea. Prejudice is inherent in the proceeding. 7a. Further, nothing in this court’s order denying relief and/or it’s attachments in the instant case shows where the defendant is not entitled to relief on this particular argument. See: McLin v. State 827 So.2d 948 (Fla.2002), on remand 949 So.2d 1123, rehearing denied. Further, in order for this court to deny the defendant’s motion in the instant case without attaching portions of the record showing where the court advised the defendant of the maximum penalty he faced as a Youthful Offender, it must state its rationale in its decision. Defense counsel should have objected to the court’s sentencing because his client was not made aware he was facing a Youthful Offender Sentence. The court herein simply adopted the argument of the state in its order denying relief. Nothing was ever mentioned to the defendant concerning the fact that he was going to be sentenced as a Youthful Offender or the maximum sentence he faced as a Youthful Offender. This court should reconsider its decision on this issue. 8. Ground Four of the defendant’s motion also has merit and should not be denied by this court. Defense counsel has a duty to his client under Rule 3.172 Fla.R. Crim. Proc. to protect his client from

entering a plea without understanding the consequences of his action. In the instant case defense counsel was not even made aware that the court intended to sentence the defendant under the Youthful Offender Act. Once he heard the court issue a sentence under said act, he should have made an objection based upon the fact that the defendant was never advised he could possibly be sentenced as a Youthful Offender, and was never advised by the court as to the possible maximum sentence he could receive under said act. The defendant argued this point under the case of Garza v. State, 519 So.2d 727 (Fla. 2d.DCA 1988) and there the court held that when a client has not been made aware of the maximum penalty he was facing at the time he entered his plea, said plea could not have been entered voluntarily. This court should reconsider it decision on this issue. 9. Because this court has adopted the state’s response as a predicate to deny the defendant’s motion, this court should also consider the statements made by the state in its response that are made in error. On page #6 of the state’s response (Last Paragraph) the State’s comment that the defendant has not set forth any facts that were not known to him prior to entering his plea. The fact is, the defendant did not know that he was going to be sentenced as a Youthful Offender until

after his plea was accepted. Further, the State in the same paragraph states that the defendant’s father initiated the original complaint. “THIS IS NOT TRUE”! The defendant’s father tried to get the State to drop charges on his son but the State refused to do so. Page #8 of the State’s response, Section II, the State makes a comment that the defendant referred to the structure as a dwelling though out his motion. No where in the defendant’s motion did he refer to the structure as a dwelling. Every mention of the word “dwelling” in his motion was accompanied by the word “Alleged Dwelling”! In fact, it is this court that referred to the structure as a structure in its order denying relief. (Page #1, subsection #1). 10. The State argues on page #7 paragraph #1 under the authority of Krawczuk v. State, 634 So.2d 1070 (Fla. 1994), cert. denied, 513 U.S. 881, 115 S.Ct.216, 130 L.Ed.2d 143 (1994) that “A guilty plea cuts off all issues arising prior to the plea except jurisdiction, legality of sentence imposed, failure of the state to abide by the plea agreement, and the voluntary and intelligent nature of the plea”. This particular case law supports the defendant’s arguments more then the State’s legal reasoning. The defendant has argued all though his motion the legality of his sentence and the voluntary and intelligent nature of his plea due

to Ineffective assistance counsel. Wherefore, based upon the foregoing arguments and cited authorities, the defendant respectfully request that this Honorable Court grant him a Rehearing in the instant case.

Respectfully Submitted,

________________________________ James F. Shunk CCA Lake City C.F. 7906 East US Hwy 90 Lake City, Fl. 32055 CERTIFICATE OF SERVICE I, James F. Shunk, hereby certify that I have furnished a true and Correct copy of the foregoing to the Office of the State Attorney, John C. Bernidt, at the Polk County Courthouse,

________________________________ James F. Shunk