Opinion
No. 4D04-1690.
February 2, 2005.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Marc H. Gold, Judge; L.T. Case No. 91-6107 CF10A.
Gerald Kleparek, Jasper, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
Gerald Kleparek appeals a trial court order denying his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, raising twelve claims of ineffective assistance of trial counsel. We reverse and remand the summary denial of claims five, eight, and nine, but affirm without discussion the remaining claims. Claims five, eight, and nine alleged that Kleparek entered his admission to allegations of violation of probation based on certain affirmative misadvice of his counsel, as to the sentencing guidelines range, the credit to which he would be entitled upon sentencing, and the length of sentence which would be imposed. The trial court erred in summarily denying these claims without record attachments refuting them, or an evidentiary hearing. See State v. Leroux, 689 So.2d 235 (Fla. 1996); Bedwell v. State, 878 So.2d 423 (Fla. 4th DCA 2004); Baker v. State, 879 So.2d 663 (Fla. 5th DCA 2004); Fisher v. State, 824 So.2d 1050 (Fla. 3d DCA 2002).
Accordingly, we reverse the trial court's order summarily denying these claims of affirmative misadvice and remand for attachment of portions of the record refuting them, or an evidentiary hearing.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
FARMER, C.J., STONE and TAYLOR, JJ., concur.