PAUL LEVENS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court affirmed the denial of post-conviction relief for a defendant who claimed ineffective assistance of counsel for not being informed about the loss of basic gain time due to an habitual felony offender sentence. The court distinguished this case from precedent where affirmative misrepresentations were made.
The court held that the defendant failed to demonstrate entitlement to post-conviction relief because his allegations did not involve affirmative misrepresentations by counsel, distinguishing the case from precedent that allowed withdrawal of a plea under such circumstances.
[1] A defendant's claim of ineffective assistance of counsel based on counsel's failure to inform the defendant of ineligibility for basic gain time is insufficient for post-…
[2] A written negotiated plea form does not automatically refute allegations of ineffective assistance of counsel if the allegations concern affirmative misrepresentations ma…
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Join FLexlaw to unlock all legal intelligence“Unlike the Rackley allegations of affirmative misrepresentations concerning eligibility for statutory gain time, appellant in this case alleges simply that his counsel did not inform him that by virtue of his plea agreement for an habitual felony offender sentence, he would not be entitled to receive basic gain time.”
This quote highlights the key factual distinction the court relied upon to deny relief.
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Join FLexlaw to unlock all legal intelligencePaul Levens pleaded guilty to sale of cocaine and was sentenced as an habitual felony offender. He alleged his counsel was ineffective for failing to …
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JOANOS, Chief Judge.
Paul Levens appeals the summary denial of his motion for post-conviction relief, predicated on allegations of ineffective assistance of appointed counsel. We affirm, with the following brief explanation.
Pursuant to a plea bargain, Levens pled guilty to sale of cocaine and was sentenced to nine years incarceration as an habitual felony offender. Levens alleges his counsel was ineffective for failing to advise him that he would be ineligible to receive basic gain time if he were sentenced as an habitual felony offender. See § 775.084, Florida Statutes (1989). Levens further asserts he would not have entered into the plea bargain if he had been so advised, urging that under this court’s decision in Rackley v. State, 571 So. 2d 533 (Fla. 1st DCA 1990), he should be permitted to withdraw his plea.
The trial court denied relief, finding Levens’ allegations without merit, in light of the provisions of the plea of guilty and negotiated sentence form, a copy of which was attached to the order. In Raekley, as m this case, the inmate alleged that his trial counsel failed to inform him that his plea bargain for an habitual felony offender sentence precluded his eligibility for statutory gain time.
The trial court in Raekley found the ineffective assistance of counsel claims were refuted by written statements to the contrary in the written negotiated plea.
This court disagreed.
However, the Raekley fact scenario was somewhat more complex than the factual allegations presented in this case. Raekley alleged that his original public defender told him he was “looking at” a four-year sentence whether he stood trial or pled, and the state had offered a four-year sentence if he agreed to plead guilty. Two weeks later, a second public defender allegedly re-affirmed that if Rack-ley were found guilty at trial, four years was the maximum sentence he could receive. Raekley then learned that he was facing a possible thirty-year habitual felony offender sentence, with a ten-year minimum mandatory. The second public defender allegedly told Raekley that the state agreed to a ten-year habitual offender sentence in return for a guilty plea, and al though he would be ineligible for administrative gain time, he was eligible for statutory and incentive gain time, so that his actual sentence would be about four years. After entry of his plea, Rackley learned he would not be eligible for statutory gain time, and that he would serve at least six years of the ten-year sentence. 571 So. 2d at 534.
In addition to the various erroneous representations of Rackley’s counsel, the record indicated that although the written sentence established that the conditions of his sentence were made clear to Rackley at sentencing, the negotiated plea of guilty was entered four days prior to the written sentence and the sentencing hearing. In view of these circumstances, this court reversed the denial of Rackley’s motion for post-conviction relief with respect to his ineffective assistance of counsel claims. The court concluded the written negotiated plea statements did not refute Rackley’s allegations that his trial counsel failed to inform him of his ineligibility for statutory gain time, or the allegations that the plea was involuntary due to the misrepresentations of counsel. 571 So. 2d at 535.
Unlike the Rackley allegations of affirmative misrepresentations concerning eligibility for statutory gain time, appellant in this case alleges simply that his counsel did not inform him that by virtue of his plea agreement for an habitual felony offender sentence, he would not be entitled to receive basic gain time. In Wright v. State, 583 So. 2d 399 (Fla. 1st DCA 1991), the court rejected similar claims, finding them insufficient to warrant relief, because they failed to set forth affirmative allegations of erroneous and misleading information, which formed the basis for the decision in Rackley. Since there is nothing in the record before us to suggest that Levens based his decision to accept the plea bargain upon affirmative misrepresentations concerning his eligibility for basic gain time, consistent with the standard set forth in Wright, we conclude he has failed to demonstrate entitlement to post-conviction relief.1
Accordingly, the order denying Levens’ motion for post-conviction relief is affirmed.
ZEHMER and KAHN, JJ., concur. . We are cognizant that our decisions here and in Wright v. State, 583 So. 2d 399 (Fla. 1st DCA 1991), conflict in principle with that of the fifth district in Setzer v. State, 575 So. 2d 747 (Fla. 5th DCA 1991), on the same issue. Setter was a direct appeal from a denial of a motion to withdraw a plea of guilty, while the instant case is an appeal from a denial of a motion for post-conviction relief. Nevertheless, the underlying claims are essentially the same in each instance, i.e., the respective appellants sought relief from a plea bargain involving habitual offender sentencing, alleging that defense counsel failed to inform that entry of the plea would result in the loss of basic gain time.
The Setter reversal was based on defense counsel’s obligation, under Florida Rule of Criminal Procedure 3.171(c)(2), to advise the defendant "of all pertinent matters bearing on the choice of which plea to enter, the particulars attendant upon each plea, and the likely result thereof.” Setter, 575 So. 2d at 747, citing State v. Ginebra, 511 So. 2d 960 (Fla.1987).
See abo Caristi v. State, 578 So. 2d 769, 773 (Fla.1991); Corbitt v. State, 584 So. 2d 231, 232 (Fla. 5th DCA 1991).
Since the record in Setter was silent regarding whether the appellant had ever been informed, either prior to, or at the time of pleading guilty, that his plea would result in the loss of basic gain time, the denial of the motion to withdraw plea was reversed and remanded for an evidentiary hearing on that issue. In Wright, this court concluded that a silent record on the question of counsel’s responsibility to inform a defendant as to the consequences of a proposed plea was insufficient to warrant post-conviction relief.
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)…acts that Rackley claimed he was misled by counsel. The 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 majo…
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Eady v. State, 604 So. 2d 559 (Fla. 1st DCA 1992)…ing his eligibility for various types of gain-time are 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,…
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State v. Will, 645 So. 2d 91 (Fla. 3d DCA 1994)…basic gain time is not a consequence which the trial court 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 19…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Ginebra, 511 So. 2d 960 (Fla. 1987)
- Rackley v. State, 571 So. 2d 533 (Fla. 1st DCA 1990)
- Setzer v. State, 575 So. 2d 747 (Fla. 5th DCA 1991)
- Caristi v. State, 578 So. 2d 769 (Fla. 1st DCA 1991)
- Corbitt v. State, 584 So. 2d 231 (Fla. 5th DCA 1991)
- Wright v. State, 583 So. 2d 399 (Fla. 1st DCA 1991)