Opinion
No. 95-01710.
June 28, 1995.
Appeal pursuant to Fla.R.App.P. 9.140(g) from the Circuit Court for Lee County; Isaac Anderson, Jr., Judge.
This is an appeal by Robert Neal from the denial of a motion filed in the trial court entitled "Motion to Quash Habitual Offender Status." We treat his motion as a poorly misnamed motion pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the claims, asserting that they should have been raised at sentencing or on direct appeal. With one exception we agree.
Neal asserts that neither his counsel nor the trial court advised him at the time he entered his plea that he would be treated as a habitual offender. Claims of involuntariness associated with pleas are specifically authorized by Florida Rule of Criminal Procedure 3.850. Nothing in the record before us conclusively refutes this claim. Therefore we reverse and direct the trial court to hold an evidentiary hearing on this claim unless portions of the record do in fact conclusively refute this allegation. Any party aggrieved by the subsequent action of the trial court must file a timely notice of appeal to obtain further appellate review.
Affirmed in part, reversed in part, and remanded.
DANAHY, A.C.J., and PATTERSON and LAZZARA, JJ., concur.