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