BOBBY J. ALLEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed summary denial of Rule 3.850 motion and remanded for evidentiary hearing where defendant alleged trial counsel misrepresented that sentences would run concurrently, inducing guilty plea.
A Rule 3.850 motion alleging ineffective assistance of counsel based on misrepresentation regarding concurrent sentencing must proceed in the sentencing court where the misrepresentation occurred, not in the other jurisdiction.
[1] A Rule 3.850 motion based on counsel's misrepresentation regarding concurrent sentencing must be brought in the court where the misrepresentation occurred and the guilty…
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Join FLexlaw to unlock all legal intelligenceDefendant Allen pleaded guilty in Palm Beach County to a five-year sentence and was also sentenced in Bay County to a consecutive sentence. Allen clai…
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PER CURIAM.
This is an appeal from a summary denial of a rule 3.850 motion without attachment of portions of the record conclusively showing that appellant is not entitled to relief. We reverse and remand with direction to attach same or conduct an evidentiary hearing.
We find appellant’s contention as to the absence of a request for psychological examination to be meritless.
His remaining ground is the basis for our reversal; namely, his position that his trial defense counsel advised him that the five-year term in this case would be served concurrently with the sentence in his Bay County case, and that absent that advice, appellant would not have pled guilty.
The trial court here reasoned that appellant should file any motion for relief in the Bay County case since it was the judge in that case who sentenced appellant to a prison term to be served consecutively to the sentence imposed in Palm Beach County. However, if appellant’s attorney in the Palm Beach case did assure appellant that the two sentences would be served concurrently, and appellant relied on that advice and would not have pled guilty in the Palm Beach case but for that advice, as he alleges, then it is the present case in which appellant should seek relief, as he has done.
GLICKSTEIN, C.J., and GUNTHER and POLEN, JJ., concur.
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Hightower v. State, 650 So. 2d 1086 (Fla. 1st DCA 1995)…serve two separate sentences concurrently rather than consecutively, states a prima facie case for relief under rule 3.850. Bryant v. State, 355 So. 2d 497 (Fla. 1st DCA 1978); Schroeder v. State, 641 So. 2d 947 (Fla. 5th DCA 1994); Allen v. State, 616 So. 2d 625 (Fla. 4th DCA 1993); Patterson v. State, 611 So. 2d 84 (Fla. 2d DCA 1992); Jackson v. State, 442 So. 2d 1070 (Fla. 3d DCA 1983). The trial court’s attachments to its final order — consisting of excerpts from the plea hearing during which Hightower t…
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Schroeder v. State, 641 So. 2d 947 (Fla. 5th DCA 1994)…oncurrent. When Schroeder was denied the opportunity to withdraw his plea after it was apparent that his “bargained for” consideration had failed, his plea became involuntary. See Patterson v. State, 611 So. 2d 84 (Fla. 2d DCA 1992); Allen v. State, 616 So. 2d 625 (Fla. 4th DCA 1993). REVERSED and REMANDED for further proceedings consistent herewith. GOSHORN and DIAMANTIS, JJ., concur.…