AKEEM R. WELCH v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

AKEEM R. WELCH,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 2D22-3991

December 15, 2023

Appeal from the Circuit Court for Hillsborough County; Kimberly K. Fernandez, Judge.

Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Alicia M. Winterkorn, Assistant Attorney General, Tampa, for Appellee.

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.