FRANK A. WRIGHT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frank Wright appealed the denial of his post-conviction relief motion challenging the adequacy of his plea counsel's advice regarding gain time credits. The First District Court of Appeal affirmed the trial court's dismissal, distinguishing Wright's case from a prior decision where counsel had affirmatively misled the defendant about gain time availability.
The trial court properly summarily denied Wright's 3.850 motion because Wright did not allege that he was affirmatively misled by counsel regarding gain time provisions. The distinction from Rackley v. State, where affirmative erroneous advice was given, is controlling.
[1] A motion for post-conviction relief is properly summarily denied when the record conclusively refutes the petitioner's allegations.
[2] A defendant's claim of ineffective assistance of counsel regarding gain time and provisional release credits must allege affirmative misleading information to warrant pos…
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Join FLexlaw to unlock all legal intelligence“was not instructed properly by counsel as to the restriction of basic gain time and provisional release credits, which are extended to most nonhabitualized inmates”
States Wright's allegation in his post-conviction relief motion regarding inadequate advice about gain time credits
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Join FLexlaw to unlock all legal intelligenceWright entered a negotiated guilty plea to sale or delivery of cocaine. He filed a motion for post-conviction relief under Florida Rule of Criminal Pr…
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KAHN, Judge.
Wright appeals the trial court’s summary denial of a motion for post-conviction relief, filed pursuant to Fla.R.Crim.P. 3.850. Appellant, who entered a negotiated plea of guilty to a charge of sale or delivery of cocaine, contends that prior to entry of the plea, he “was not instructed properly by counsel as to the restriction of basic gain time and provisional release credits, which are extended to most nonhabitualized inmates.” We affirm the trial court’s denial of the petition and distinguish our recent decision in Rackley v. State, 571 So. 2d 533 (Fla. 1st DCA 1990).
The petitioner in Rackley affirmatively alleged that he had been given erroneous and misleading information concerning nonavailability of gain time, and specifically contended that court-appointed counsel informed petitioner that, even as an habitual offender, he would actually serve about four years of a ten year sentence. On these facts we held that Rackley’s 3.850 petition could not be summarily dismissed, since the sparse record before the court 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 similar provisions, we conclude that the trial court correctly dismissed the 3.850 motion.
SHIVERS and ZEHMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Simmons v. State, 611 So. 2d 1250 (Fla. 2d DCA 1992)…he First District has since made clear that this fact, and not the mere failure to discuss implications of gain time, was the dispositive consideration in its decision to reverse. Levens v. State, 598 So. 2d 120 (Fla. 1st DCA 1992); Wright v. State, 583 So. 2d 399 (Fla. 1st DCA 1991).1 In Levens the court distinguished Setzer as involving rule 3.170(f) rather than 3.850. In concluding that Setzer was entitled to an evidentiary hearing on his motion, a majority of that panel had found within rule 3.171(c)(2)(…
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Eady v. State, 604 So. 2d 559 (Fla. 1st DCA 1992)…e insufficient to warrant post-conviction relief, absent a further allegation that counsel affirmatively misrepresented the defendant’s eligibility for various types of gain-time. Levens v. State, 598 So. 2d 120 (Fla. 1st DCA 1992); Wright v. State, 583 So. 2d 399 (Fla. 1st DCA 1991). In other words, the defendant must allege that he or she relied upon affirmative erroneous advice in making a decision to enter a plea. Wright, 583 So. 2d at 400. Obversely, allegations that counsel gave erroneous advice that t…
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State v. Will, 645 So. 2d 91 (Fla. 3d DCA 1994)…t imposes. Accordingly, loss of eligibility for basic gain time is a collateral consequence of a plea. See id.; Simmons v. State, 611 So. 2d 1250, 1252-53 (Fla. 2d DCA 1992); Levens v. State, 598 So. 2d 120, 121 (Fla. 1st DCA 1992); Wright v. State, 583 So. 2d 399, 400 (Fla. 1st DCA 1991); see also Blackshear v. State, 455 So. 2d 555, 556 (Fla. 1st DCA 1984) (forfeiture of accumulated gain time). But see Wilcox v. State, 638 So. 2d 527 (Fla. 5th DCA 1994) (post-Ashley decision; suggesting that ineligibility f…
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
- RAY v. State, 480 So. 2d 228 (Fla. 2d DCA 1985)
- Rackley v. State, 571 So. 2d 533 (Fla. 1st DCA 1990)
- Tarpley v. State, 566 So. 2d 914 (Fla. 2d DCA 1990)
- Netherly v. State, 508 So. 2d 524 (Fla. 2d DCA 1987)