PABLO COLON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Pablo Colon appeals the summary denial of his motion for postconviction relief following his guilty plea to sexual battery and lewd assault charges. The appellate court affirms the denial of relief regarding promised leniency but reverses and remands regarding potential abandonment of appellate rights, finding a factual dispute that requires trial court examination.
The court affirms the denial of relief regarding the claim that counsel promised a more lenient sentence, as the plea colloquy transcript refutes this claim. However, the court reverses and remands regarding the appellate rights claim because a genuine letter from counsel creates a factual dispute that the plea form does not conclusively refute.
[1] A guilty plea is not rendered involuntary by a defendant's denial of promises outside the plea bargain during a plea colloquy.
[2] A defendant's claim that appellate rights were preserved may create an issue of fact, even when a plea form does not explicitly mention an appeal.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A transcript of the plea colloquy reveals that Colon denied any promises apart from the terms of his plea bargain.”
Establishes that the trial court record refutes Colon's claim that counsel promised leniency beyond the plea bargain.
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Join FLexlaw to unlock all legal intelligenceIn 1990, Colon pleaded guilty to two counts of attempted sexual battery and one count of lewd assault. Prior to entering his plea, Colon requested the…
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PER CURIAM.
Pablo Colon appeals the summary denial of his motion for postconviction relief. We affirm in part and reverse in part.
This is the third appeal in this case. In 1990 Colon entered a guilty plea to two counts of attempted sexual battery and one count of lewd assault. He appealed from the judgment and sentence. However, the appeal was dismissed pursuant to Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979). Colon v. State, 581 So. 2d 1318 (Fla. 2d DCA 1991) (table). Colon then filed his motion for postconviction relief. In Colon v. State, 586 So. 2d 1305 (Fla. 2d DCA 1991), we reviewed the various grounds raised in the motion and concluded that two warranted further examination by the circuit court. The present appeal follows the proceedings after mandate.
The attachments to the trial court’s latest order are sufficient to refute the first issue. Colon claimed that counsel promised a more lenient sentence than actually received. A transcript of the plea colloquy reveals that Colon denied any promises apart from the terms of his plea bargain. We therefore affirm the denial of relief with respect to this issue.
We cannot, however, reach the same conclusion with regard to the second issue. The facts are set forth in some detail in our prior opinion. Prior to entering his plea, Colon asked the trial court to declare the minor victim incompetent to testify. When the court found otherwise, Colon was advised to, and did, plead guilty. This resulted in the dismissal of his appeal. Colon now asserts that he was led to believe his appellate rights would be preserved. See, e.g., Helms v. State, 573 So. 2d 116 (Fla. 2d DCA 1991).
In response to this claim the trial court has furnished a written plea agreement signed by Colon. This indicates a “best interests” plea, with no mention made of an appeal even though the form provides a separate checkoff for no contest pleas wherein appellate issues are being preserved. This does suggest Colon may have abandoned his plan to appeal in exchange for a plea offer to reduced charges. However, in the previous appeal we noted the existence of a letter, purportedly from counsel and dated after the plea, reminding Colon that the pretrial ruling “is the very thing that we are appealing.” We must conclude that this letter, assuming it is genuine, creates an issue of fact which the plea form does not conclusively refute. Accordingly, we must reverse for further proceedings regarding this one issue. Our previous opinion outlines the appropriate remedy in the event the trial court finds relief is warranted.
Affirmed in part, reversed in part, and remanded with instructions.
FRANK, A.C.J., and THREADGILL and PARKER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Leroux, 689 So. 2d 235 (Fla. 1996)…f case at the trial and appellate levels. A defendant who has initially acknowledged under oath that no such promises have been made will generally be estopped at a later time to claim otherwise. Simmons, 611 So. 2d at 1253. See also Colon v. State, 595 So. 2d 271 (Fla. 2d DCA 1992)(transcript of plea colloquy in which defendant denied any promises apart from plea agreement sufficient to refute claim that counsel promised a more lenient sentence). Additionally, in an appropriate case, such a defendant may fac…
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Carmichael v. State, 631 So. 2d 346 (Fla. 2d DCA 1994)…t the trial and appellate levels.1 A defendant who has initially acknowledged under oath that no such promises have been made will generally be [*348] estopped at a later time to claim otherwise. Simmons, 611 So. 2d at 1253. See also Colon v. State, 595 So. 2d 271 (Fla. 2d DCA 1992) (transcript of plea colloquy in which defendant denied any promises apart from plea agreement sufficient to refute claim that counsel promised a more lenient sentence). Additionally, in an appropriate case, such a defendant may fa…
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Leroux v. State, 656 So. 2d 558 (Fla. 4th DCA 1995)…fendant’s motion for post-conviction relief based on the defendant’s acknowledgment at his plea hearing that no “promises,” other than those referred to at the plea hearing, had been made to him by anyone.1 645 So. 2d at 60; see also Colon v. State, 595 So. 2d 271 (Fla. 2d DCA 1992). In Zaetler v. State, 627 So. 2d 1328, 1329 (Fla. 3d DCA 1993), review denied, 639 So. 2d 984 (Fla.1994), a plea colloquy in which the defendant testified that no promises had been made to him “other than the plea-negotiated sente…
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
- Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979)
- Helms v. State, 573 So. 2d 116 (Fla. 2d DCA 1991)
- Colon v. State, 586 So. 2d 1305 (Fla. 2d DCA 1991)