ERNEST NETHERLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that a defendant is entitled to withdraw a nolo contendere plea if they were not informed that the plea would cause them to lose gain-time, thereby extending their release date.
Ernest Netherly appealed the summary denial of his post-conviction motion, arguing his nolo contendere plea to escape was involuntary because he was n…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Gain Time cases and more on FLexlaw
PER CURIAM.
Ernest Netherly appeals from the summary denial of his post-conviction motion filed pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure. We reverse.
Among the grounds urged by Neth-erly in support of his motion before the trial court was the contention that his nolo contendere plea to a charge of escape was involuntary. He asserted that he was not informed by his attorney that the conviction resulting from his plea would cause him to lose 2514 days gain-time thus extending his release date from December 1986 to October 1993. If it is true that he was not told of that consequence, Netherly was entitled to withdraw his plea. Ray v. State, 480 So. 2d 228, 229 (Fla. 2d DCA 1985); Wynn v. State, 452 So. 2d 1097 (Fla. 2d DCA 1984).
The transcript of Netherly’s sentencing hearing was attached to his motion but it does not overcome his claim that he was not advised of the effect of his plea. Indeed, the record contains a letter to Netherly from his public defender confirming that she misinformed him about the amount of gain-time his conviction would cause him to lose. At the very least the trial court, consistent with Rule 3.850, should have required the state to respond to his motion. Thus, we reverse the denial of Netherly’s motion and remand to the trial court with directions that it follow Rule 3.850. Huntley v. State, 493 So. 2d 58 (Fla. 1st DCA 1986).
Reversed and remanded with directions.
DANAHY, C.J., and RYDER and FRANK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Simmons v. State, 611 So. 2d 1250 (Fla. 2d DCA 1992)…the defendant he would receive incentive gain time although serving a minimum mandatory sentence pursuant to section 775.087(2), Florida Statutes (1983). Simmons makes no such claim. However, his motion for rehearing, which cites Netherly v. State, 508 So. 2d 524 (Fla. 2d DCA 1987), implies that this may not be necessary. Netherly involved an escapee whose conviction required the forfeiture of accrued gain time. See § 944.28(1), Fla. Stat. (1991). Although Netherly did assert he was “not informed ... of that…
-
Setzer v. State, 575 So. 2d 747 (Fla. 5th DCA 1991)…l. This conclusion is erroneous. Entry of a guilty plea without being informed or having knowledge of the fact that the plea will result in the loss of basic gain time is improper and can form the basis for withdrawal of the plea. Netherly v. State, 508 So. 2d 524 (Fla. 2d DCA 1987). See also Rackley v. State, 571 So. 2d 533 (Fla. 1st DCA 1990). The record is silent on whether appellant prior to, or at the time of, pleading guilty was ever informed of the fact that his plea would result in the loss of basic g…
-
Wright v. State, 583 So. 2d 399 (Fla. 1st DCA 1991)…t in that case did not conclusively refute Rack-ley’s allegations. In the present case, however, the petitioner does not allege that he was affirmatively misled by counsel. See, Tarpley v. State, 566 So. 2d 914 (Fla. 2d DCA 1990); Netherly v. State, 508 So. 2d 524 (Fla. 2d DCA 1987); Ray v. State, 480 So. 2d 228 (Fla. 2d DCA 1985). Since it may not be said in the present case that Wright, in deciding whether to enter a plea, relied upon affirmative erroneous advice regarding the effect of gain time and simi…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- RAY v. State, 480 So. 2d 228 (Fla. 2d DCA 1985)
- Huntley v. State, 493 So. 2d 58 (Fla. 1st DCA 1986)
- Hodo v. State, 493 So. 2d 58 (Fla. 2d DCA 1986)
- Wynn v. State, 452 So. 2d 1097 (Fla. 2d DCA 1984)