DONALD CARL BELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the record was insufficient to refute the defendant's claim that his plea was involuntary due to counsel's unfulfillable promises regarding parole and gain-time credits.
Donald Bell pleaded guilty to second-degree murder with a firearm and received a forty-year sentence. He claims his counsel erroneously promised him e…
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PER CURIAM.
Donald Bell appeals the summary denial of his motion for postconviction relief. We affirm in part and reverse in part.
Of the three issues raised in Bell’s motion, only one requires further consideration. Bell is serving a forty-year sentence for second degree murder with a firearm. The sentence is the result of a plea agreement. Bell now asserts that counsel erroneously promised him he would be eligible for both parole and provisional gain-time credits and that he relied on this promise when entering the plea. If this is true, Bell might be entitled to withdraw the plea. Tarpley v. State, 566 So. 2d 914 (Fla.2d DCA 1990). But see Simmons v. State, 17 F.L.W. D1681, 1992 WL 158119 (Fla. 2d DCA July 10, 1992).
The record presently before us is not sufficient to refute Bell’s claim that his plea was involuntary by virtue of counsel’s unfulfillable promises. Accordingly, we must reverse for additional proceedings regarding this one issue. After remand, the trial court should re-examine the files and records and determine whether anything therein conclusively refutes this portion of the motion. If so, the court may again deny relief, attaching to its order the exhibits upon which it has relied. Otherwise an evidentiary hearing may be necessary. Anyone aggrieved by the subsequent actions of the trial court must file a timely notice of appeal to obtain further appellate review. The remainder of the motion is without merit and was properly denied.
Affirmed in part, reversed in part, and remanded with instructions.
SCHOONOVER, A.C.J., and HALL and BLUE, JJ., concur.
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State v. Leroux, 689 So. 2d 235 (Fla. 1996)…rez v. State, 605 So. 2d 163 (Fla. 2d DCA 1992) (finding that plea colloquy attached to trial court’s order denying relief did not conclusively refute defendant’s claim that counsel gave erroneous advice as to eligibility for parole); Bell v. State, 602 So. 2d 693 (Fla. 2d DCA 1992)(finding record insufficient to conclusively refute defendant’s claim that his plea was involuntary by virtue of counsel’s advice regarding parole and gain-time credits). The cited cases support the proposition that counsel’s erron…
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Montgomery v. State, 615 So. 2d 226 (Fla. 5th DCA 1993)…claim or hearing); Eady v. State, 604 So. 2d 559 (Fla. 1st DCA 1992) (claim counsel misinformed defendant regarding eligibility for provisional gain time credits and early release sufficient to cast doubt on voluntary nature of plea); Bell v. State, 602 So. 2d 693 (Fla. 2d DCA 1992) (record did not refute claim that counsel erroneously promised defendant he would be eligible for certain gain time); Middleton v. State, 603 So. 2d 46 (Fla. 1st DCA 1992) (written plea did not refute claim that counsel mi-sadvise…
Authorities Cited
- Tarpley v. State, 566 So. 2d 914 (Fla. 2d DCA 1990)