LOUIS C. DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Davis appeals the summary denial of his Rule 3.850 motion claiming his no contest plea to kidnapping and sexual battery was involuntary because he was promised a guideline sentence but received a 30-year departure sentence without being informed he could withdraw his plea. The court reverses and remands for an evidentiary hearing because the claim is legally cognizable and the summary denial was improper.
A claim that a plea was entered involuntarily is a valid basis for relief under Rule 3.850. The trial court erred in summarily denying the motion without either attaching record portions refuting the allegations or holding an evidentiary hearing, because the state conceded the motion was legally sufficient on its face.
[1] A postconviction court's finding that a claim is moot due to a prior resentencing is unsupported when the appellate record does not contain the ruling on the prior motion…
[2] When a postconviction court denies a claim, it must attach portions of the record that conclusively refute the claim if the court's findings are not otherwise supported.
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Join FLexlaw to unlock all legal intelligence“a claim that a plea was entered involuntarily is a valid basis for relief pursuant to Rule 3.850”
Establishes that Davis's type of claim is legally cognizable and cannot be summarily dismissed
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Join FLexlaw to unlock all legal intelligenceDavis pled no contest to one count of kidnapping and two counts of sexual battery. He was sentenced to thirty years incarceration, which was a departu…
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PER CURIAM.
This is an appeal of the summary denial of a Rule 3.850 motion. Defendant pled no contest to one count of kidnapping and two counts of.sexual battery and was sentenced to thirty years incarceration. This court affirmed the conviction and sentence without opinion. See Davis v. State, 559 So. 2d 1151 (Fla. 5th DCA 1990). The only issue raised on appeal was whether the trial court erred in departing from the sentencing guidelines for improper or unsupported reasons.
Defendant contends in his Rule 3.850 motion that he entered his no contest plea after being advised by his counsel and the court that he would receive a sentence within the guideline range of twelve to seventeen years and defendant claims he was not told that he could withdraw his plea when he was given a departure sentence of thirty years. The trial judge denied defendant’s motion, finding that the issue raised could and should have been raised on appeal and is not cognizable in a Rule 3.850 motion. Defendant filed a timely appeal.
The state, in the response ordered by this court, concedes that a claim that a plea was entered involuntarily is a valid basis for relief pursuant to Rule 3.850. See Mikenas v. State, 460 So. 2d 359 (Fla.1984); Isley v. State, 565 So. 2d 389 (Fla. 5th DCA 1990); Smothers v. State, 555 So. 2d 452 (Fla. 5th DCA 1990); Ward v. State, 545 So. 2d 523 (Fla. 5th DCA 1989); Joseph v. State, 540 So. 2d 260 (Fla. 5th DCA 1989).
When a trial court summarily denies a motion for post-conviction relief without holding an evidentiary hearing or attaching portions of the record to refute the allegations, review is limited to determining whether, accepting the allegations as true, the motion conclusively shows the defendant is not entitled to relief. See Kennedy v. State, 547 So. 2d 912 (Fla.1989); Gorham v. State, 521 So. 2d 1067 (Fla.1988); Squires v. State, 513 So. 2d 138 (Fla.1987); Harich v. State, 484 So. 2d 1239 (Fla.1986). In this case, the state concedes that the motion is legally sufficient on its face. Accordingly, the trial court’s order is reversed and the case remanded for the court to either attach those portions of the record which refute the claims or to hold an evidentiary hearing.
REVERSED AND REMANDED.
COBB, COWART and GOSHORN, JJ., concur.
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Waters v. State, 612 So. 2d 685 (Fla. 5th DCA 1993)…the motion conclusively shows that the movant is not entitled to relief. See, e.g., Gorham v. State, [*686] 521 So. 2d 1067 (Fla.1988); Squires v. State, 513 So. 2d 138 (Fla.1987); Debose v. State, 580 So. 2d 638 (Fla. 5th DCA 1991); Davis v. State, 571 So. 2d 118 (Fla. 5th DCA 1990). Waters’s allegations regarding the involuntary nature of his plea are facially sufficient and are not refuted by any records before this court. We therefore reverse the summary denial of Waters’s motion for post-conviction rel…
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Ozell Debose, Jr. v. State, 580 So. 2d 638 (Fla. 5th DCA 1991)…holding an evidentiary hearing or attaching portions of the record to refute the allegations, review is limited to determining whether, accepting the allegations as true, the motion shows that the defendant is not entitled to relief. Davis v. State, 571 So. 2d 118 (Fla. 5th DCA 1990); see also Smothers v. State, 555 So. 2d 452 (Fla. 5th DCA 1990) (unless a motion is legally insufficient on its face, the trial court must attach portions of the record conclusively showing defendant is not entitled to relief).…
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Emory W. McGOWAN v. State, 586 So. 2d 1311 (Fla. 5th DCA 1991)…case which conclusively show that the appellant is entitled to no relief. REVERSED AND REMANDED. GOSHORN, C.J., and COWART, J., concur. . § 794.041(2)(b), Fla.Stat. (1989). . See Harich v. State, 484 So. 2d 1239, 1241 (Fla.1986); Davis v. State, 571 So. 2d 118 (Fla. 5th DCA 1990); Joseph v. State, 540 So. 2d 260, 261 (Fla. 5th DCA 1989). . The order did not take into account the need to deduct 40 victim injury points. . Sentencing errors are, of course, not literally raised "at trial”, but it seems to h…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Kennedy v. State, 547 So. 2d 912 (Fla. 1989)
- Harich v. State, 484 So. 2d 1239 (Fla. 1986)
- Mikenas v. State, 460 So. 2d 359 (Fla. 1984)
- Gorham v. State, 521 So. 2d 1067 (Fla. 1988)
- Isley v. State, 565 So. 2d 389 (Fla. 5th DCA 1990)
- Squires v. State, 513 So. 2d 138 (Fla. 1987)
- Smothers v. State, 555 So. 2d 452 (Fla. 5th DCA 1990)
- Elliott R. Subervi v. Hon. Jeffords D. Miller, 555 So. 2d 452 (Fla. 5th DCA 1990)
- EIR, Inc. v. Elec. Molding Corp., 540 So. 2d 260 (Fla. 5th DCA 1989)
- Augustine Joseph v. State, 540 So. 2d 260 (Fla. 5th DCA 1989)