Summary
In Green v. State, 777 So.2d 433 (Fla. 2d DCA 2000), this court reversed the trial court's summary denial of Green's rule 3.850 motion because his claim of ineffective assistance of counsel was facially sufficient and was not refuted by the record.
Summary of this case from Green v. StateOpinion
No. 2D00-3070.
December 27, 2000.
Appeal from the Circuit Court, Lee County, Thomas S. Reese, J.
Donald Green appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In 1997, Green pleaded guilty to one count of possession of cocaine and one count of sale of cocaine. He received a guidelines sentence of twenty-two months' prison on the former and a concurrent. habitual offender sentence of fifteen years' prison followed by fifteen years' probation on the latter. At the same time, he also admitted to violating his probation on a 1989 sale of cocaine charge and was sentenced to a concurrent fifteen-year prison sentence with credit for the time he had previously spent in prison on that charge.
Green has alleged that his plea was involuntary and his counsel ineffective in several regards. We agree with the trial court's conclusion that two of Green's claims are refuted by the record and at firm the order as to those claims without comment. We reverse as to Green's third claim, which we conclude is facially sufficient and is not refuted by the record.
Green alleged that counsel erroneously advised him that because his sentences were imposed concurrently, he would receive credit for time spent in prison on the 1989 charge against the sentences imposed on the new charges. This is, of course, incorrect as Green learned when he arrived at the Department of Corrections. Green further alleged that he would not have pleaded guilty if he had know this advice was incorrect. This claim is facially sufficient. See, e.g., Montgomery v. State, 615 So.2d 226 (Fla. 5th DCA 1993) (holding that misadvice of counsel as to the length of a sentence is a basis for postconviction relief if not refuted by the record); Davis v. State, 697 So.2d 957 (Fla. 2d DCA 1997) (holding that in order to establish prejudice based on misadvice regarding sentence length, defendant must allege generally that he would not have pleaded but for the bad advice). Because it is not refuted by record attachments, we reverse and remand. On remand the trial court may again summarily deny this claim only if it is refuted by record evidence. Otherwise, an evidentiary hearing must be held.
We note that Green's claim is not refuted by anything contained in the transcript of the plea colloquy provided to this court.
Affirmed in part, reversed in part, and remanded.
BLUE, A.C.J., and GREEN and STRINGER, JJ., concur.