LARRY HENDRIX, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant's motion stated a facially sufficient allegation of ineffective assistance of counsel regarding sentencing guidelines.
Defendant was sentenced for crimes committed before October 1, 1983, and claims his counsel was ineffective for waiving the application of sentencing …
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ORFINGER, Judge.
This appeal is from the summary denial of defendant’s motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850.
For crimes which were committed prior to October 1, 1983, defendant was sentenced on June 6, 1984 to a total of 75 years’ imprisonment, with the court retaining jurisdiction for the first 25 years to review any parole release order. Defendant asserts that his counsel was ineffective in waiving the application of the sentencing guidelines which he was entitled to select pursuant to section 921.001(4)(a), Florida Statutes (1985), without advising him of his options, when the guidelines would have placed his presumptive sentence in the 12-17 year range. He contends1 that these facts demonstrate prejudice sufficient to require the State to respond and for the court to hold an evidentiary hearing. He further asserts his desire to be sentenced under the guidelines.
Because the motion states a facially sufficient allegation of ineffective assistance of counsel on the sentencing guidelines issue, we reverse and remand with directions to the trial court to either conduct an evidentiary hearing or to attach to the order a copy of that portion of the files and records which conclusively show that petitioner is entitled to no relief. Fla.R.Crim.P. 3.850.
REVERSED and REMANDED for further proceedings.
DAUKSCH and SHARP, JJ., concur. . Defendant asserts other grounds for relief, but those are grounds which either were or could have been raised on direct appeal and therefore are not reviewable in a Rule 3.850 proceeding, Harich v. State, 484 So. 2d 1239 (Fla.1986), or which do not sufficiently assert a basis for relief under the standards established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) or Downs v. State, 453 So. 2d 1102 (Fla.1984).
Cases With Similar Vibessemantic neighbors from the corpus
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Morris v. State, 493 So. 2d 19 (Fla. 5th DCA 1986)…parole, a defendant would not be expected to serve more time under a non-guidelines sentence than he would serve under a guidelines sentence without parole, the defendant has not been prejudiced. This case is distinguishable from Hendrix v. State, 491 So. 2d 1172 (Fla. 5th DCA 1986) because in Hendrix the appellant included in the motion those allegations which are missing here, and affirmatively stated his election to be sentenced under the guidelines. The vague and indefinite allegations in the petition su…1 / 2
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Henderson v. State, 496 So. 2d 226 (Fla. 5th DCA 1986)…ant has alleged he was denied effective assistance of counsel at sentencing. He says his lawyer never told him he could be sentenced under the sentencing guidelines and that if so he would be entitled to a lesser sentence. See also Hendrix v. State, 491 So. 2d 1172 (Fla. 5th DCA 1986). Because the allegations are sufficient, we quash the order and remand for an evidentiary hearing and order thereon. REVERSED and REMANDED. COBB and SHARP, JJ., concur.…
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Hyer v. State, 501 So. 2d 189 (Fla. 2d DCA 1987)…is allegation presents a factual issue that is not resolved by the attachments to the order summarily denying the motion. See Wright v. State, 492 So. 2d 394 (Fla. 1st DCA 1986); Buford v. State, 496 So. 2d 158 (Fla. 4th DCA 1986); Hendrix v. State, 491 So. 2d 1172 (Fla. 5th DCA 1986). The remaining contentions of appellant are without merit. Accordingly, we reverse and remand to the trial court for further proceedings consistent with rule 3.850. Any party aggrieved by the subsequent action of the trial cour…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Downs v. State, 453 So. 2d 1102 (Fla. 1984)
- Harich v. State, 484 So. 2d 1239 (Fla. 1986)