JOHN H. DIXON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in denying the motion for postconviction relief as untimely, and that one claim regarding an attorney's promise warrants consideration on the merits.
John Dixon, serving a life sentence for sexual battery after a no contest plea, moved for postconviction relief. He alleged his attorney promised he w…
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PER CURIAM.
John Dixon appeals the summary denial of his motion for postconviction relief. We affirm in part and reverse in part.
Dixon is serving a life sentence for sexual battery, following his plea of no contest. The motion contains numerous arguments for relief. We have examined these in their entirety, and find only one colorable claim. Dixon alleges that his trial attorney promised he would serve no more than three years in a “treatment center,” followed by probation, if he agreed to plead rather than contest the charges. If true, this would entitle Dixon to withdraw the plea. See, e.g., Bullard v. State, 477 So. 2d 655 (Fla. 2d DCA 1985).
The record before us contains nothing which would refute Dixon’s claim. Instead, the trial court denied the motion as untimely filed. This is incorrect. See Caracciolo v. State, 564 So. 2d 1163 (Fla. 4th DCA 1990); Gust v. State, 535 So. 2d 642 (Fla. 1st DCA 1988). Accordingly, we remand this case for consideration of this one issue on its merits. As previously stated, the remainder of Dixon’s motion is without merit and relief was properly denied as to all claims except the voluntariness of the plea.
Affirmed in part, reversed in part, and remanded with instructions.
RYDER, A.C.J., and DANAHY and PARKER, JJ., concur.
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McGEE v. State, 684 So. 2d 241 (Fla. 2d DCA 1996)…gment and sentence imposed pursuant to a plea from which no appeal has been taken does not become final under rule 3.850 until the thirty-day period for taking an appeal has expired. Ramos v. State, 658 So. 2d 169 (Fla. 3d DCA 1995); Dixon v. State, 593 So. 2d 1186 (Fla. 2d DCA 1992); Caracciolo v. State, 564 So. 2d 1163 (Fla. 4th DCA 1990). Accordingly, we reverse the trial court’s summary finding of untimeliness and remand with directions that it consider the merits of appellant’s motion. In the event that…
Authorities Cited
- Gust v. State, 535 So. 2d 642 (Fla. 1st DCA 1988)
- Caracciolo v. State, 564 So. 2d 1163 (Fla. 4th DCA 1990)
- Paulino Nunez v. City OF Hialeah & David Leahy, 477 So. 2d 655 (Fla. 3d DCA 1985)