JAMES DARREN DUGGAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Duggan appealed the trial court's summary denial of his Rule 3.850 post-conviction relief motion, claiming improper imposition of costs and ineffective assistance of counsel regarding gain-time eligibility. The appellate court affirmed, finding the cost allegation meritless and the ineffective assistance claim facially insufficient because Duggan failed to allege he would not have pled guilty had counsel properly informed him.
The court affirmed the trial court's summary denial. The cost allegation was properly denied. The ineffective assistance claim was facially insufficient because Duggan did not allege that, absent counsel's misstatement, he would not have entered his plea, which is a necessary element under Shaffner v. State.
[1] A defendant must allege that they would not have entered a guilty plea absent counsel's alleged misstatement to establish a facially sufficient claim of ineffective assis…
[2] A motion for post-conviction relief is facially insufficient if it fails to allege that the defendant would not have entered a plea but for the alleged error of counsel.
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Join FLexlaw to unlock all legal intelligence“the motion herein fails to allege that, had Duggan's attorney told him about his inability to accumulate provisional gain-time, he would not have entered his plea”
Establishes the required element for facial sufficiency of ineffective assistance claims—the defendant must allege he would not have pled guilty absent counsel's error
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Join FLexlaw to unlock all legal intelligenceOn March 8, 1990, Duggan pled guilty to two counts of lewd and lascivious act and was sentenced to 9 years incarceration followed by 5 years probation…
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JOANOS, Chief Judge.
James Darren Duggan has appealed an order of the trial court summarily denying his motion for post-conviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm.
On March 8, 1990, Duggan pled guilty to two counts of lewd and lascivious act, and was sentenced to 9 years incarceration followed by 5 years probation. He filed the instant motion on January 24, 1991, alleging 1) that the trial court imposed costs without giving him notice and opportunity to object, and 2) that his counsel was ineffective for failing to tell him that, because of the nature of his crimes, he would not be eligible to receive provisional gain-time while incarcerated. The trial court summarily denied the motion, attaching Dug-gan’s written plea agreement indicating in general terms his understanding of the “possible consequences of his plea.”
Upon review of this motion and order, this court requested a response from the Attorney General’s office pursuant to Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986). The state responds first that the motion was correctly denied as to the allegation of improper imposition of costs. We agree. See State v. Beasley, 580 So. 2d 139 (Fla. 1991).
As to the allegation of ineffective assistance, the state responds that, if the attachment provided by the trial court does not conclusively refute the allegation, we should nevertheless affirm under Shaffner v. State, 562 So. 2d 430 (Fla. 1st DCA 1990). In Shaffner, the prisoner alleged that his attorney had erroneously informed him, prior to his plea, that his escape offense would not result in loss of gain-time. The trial judge denied the motion, attaching to his order supporting documents which were not part of the record. The court nevertheless affirmed, finding Shaffner’s motion facially insufficient in that it did not allege that, absent the misstatement, he would not have entered the plea. Shaffner at 431.
Similarly, the motion herein fails to allege that, had Duggan’s attorney told him about his inability to accumulate provisional gain-time, he would not have entered his plea. Therefore, under authority of Shaffner, we find Duggan’s allegations of ineffective assistance facially insufficient, and affirm. See Robinson v. State, 393 So. 2d 33, 35 (Fla. 1st DCA 1981) (if a trial court’s order is sustainable under any theory revealed by the record on appeal, notwithstanding that it may have been entered for erroneous reasons, the order will be affirmed).
Affirmed.
BOOTH and WOLF, JJ., concur.
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Cited By (11 total)
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Young v. State, 608 So. 2d 111 (Fla. 5th DCA 1992)…REMANDED. GOSHORN, C.J., concurs. DIAMANTIS, J., concurs specially with opinion in which GOSHORN, C.J., concurs. . See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). . Florida law is in accord. In Duggan v. State, 588 So. 2d 1054 (Fla. 1st DCA 1991) the defendant claimed that he was induced to enter into a plea agreement based on his counsel’s erroneous advice concerning gain time. The court refused to require an evidentiary hearing finding the allegation of ineffective assi…
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Montgomery v. State, 615 So. 2d 226 (Fla. 5th DCA 1993)…hat he relied on counsel’s advice regarding his eligibility for early release and counsel’s representation as to the length of time he would serve and stated that he would not have entered the plea but for these representations. Cf. Duggan v. State, 588 So. 2d 1054 (Fla. 1st DCA 1991) (claim of ineffective assistance of counsel in misadvising defendant as to eligibility for gain time facially insufficient absent allegation that but for misinformation defendant would not have entered plea); Kidney v. State, 559…
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Davis v. State, 697 So. 2d 957 (Fla. 2d DCA 1997)…sion. Second, the trial court relied on an excerpt from the plea colloquy in which Davis responded in the negative when asked if there had been any out-of-court, nonrecord inducements which had led him to enter the plea. Relying on Duggan v. State, 588 So. 2d 1054 (Fla. 1st DCA 1991), the trial court correctly explained that the claimant in these circumstances is required to establish prejudice from the alleged bad legal advice, and absent an allegation that he or she would have rejected the plea offer had th…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Beasley, 580 So. 2d 139 (Fla. 1991)
- Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986)
- Robinson v. State, 393 So. 2d 33 (Fla. 1st DCA 1981)
- Shaffner v. State, 562 So. 2d 430 (Fla. 1st DCA 1990)