KENNETH K. YOUNG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in summarily denying the motion for postconviction relief without attaching record portions refuting the claim.
Appellant was charged with offenses, had a mistrial, and was subsequently convicted and sentenced as a habitual offender. He filed a motion for postco…
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[*907] PER CURIAM.
Kenneth K. Young appeals the summary denial of his motion for postconviction relief. We reverse.
Young was charged with several offenses to which he pleaded not guilty. A jury trial commenced, however, there was a mistrial. Following the second trial, Young was sentenced as a habitual offender to ten years in prison on one charge and to thirty years in prison on one of the other offenses, with a provision that he would be placed on probation for twenty years after serving the first ten years. These sentences were to run concurrently.
In his postconviction motion Young raises a claim of ineffective assistance of counsel. He alleges that prior to the commencement of the second trial, the state offered a plea agreement which called for two years’ community control. Young claims defense counsel advised him to reject the plea offer because the state could not seek to have him sentenced as a habitual offender due to the fact that it had not served him with a notice of intent to habitualize. If Young’s allegations are true, he may be entitled to relief. See Ginwright v. State, 466 So. 2d 409 (Fla. 2d DCA 1985). Because the order of denial does not attach portions of the record refuting Young’s claim, we reverse and remand for further proceedings.
On remand the trial court may again summarily deny the motion and attach to its order those portions of the record which show conclusively that Young is not entitled to relief or hold an evidentiary hearing and then rule on the allegations.
Reversed.
CAMPBELL, A.C.J., and SCHOONOVER and THREADGILL, JJ., concur.
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Cottle v. State, 733 So. 2d 963 (Fla. 1999)…t” basis for an evidentiary hearing); Ginwright v. State, 466 So. 2d 409, 410 (Fla. 2d DCA 1985) (remanding because the “allegations, if true, may be found by a trier of fact to constitute a substantial omission by defense counsel”); Young v. State, 625 So. 2d 906 (Fla. 2d DCA 1993); Martens v. State, 517 So. 2d 38, 39 (Fla. 3rd DCA 1987), review denied, 525 So. 2d 879 (Fla.1988).3 But see Zamora v. Wainwright, 610 F.Supp. 159, 161 (S.D.Fla.1985) (noting that claim of failure to plea bargain must allege the S…
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Steel v. State, 684 So. 2d 290 (Fla. 4th DCA 1996)…-defense claim. A claim that misinformation supplied by counsel induced a defendant to reject a favorable plea offer can constitute actionable ineffective assistance of counsel. See Kelly v. State, 623 So. 2d 619 (Fla. 4th DCA 1993); Young v. State, 625 So. 2d 906 (Fla. 2d DCA 1993); Young v. State, 608 So. 2d 111 (Fla. 5th DCA 1992). On remand, defendant must establish that if he had been correctly advised, he would have accepted the plea offer and that his acceptance would have resulted in a lesser sentence…
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Colon v. State, 909 So. 2d 484 (Fla. 5th DCA 2005)…conviction the court sentenced him to twenty years as a habitual offender. As the record now before us does not conclusively refute the defendant’s claim, we remand for an evidentiary hearing on that issue only.”) (citation omitted); Young v. State, 625 So. 2d 906, 907 (Fla. 2d DCA 1993) (“Young claims defense counsel advised him to reject the plea offer because the state could not seek to have him sentenced as a habitual offender due to the fact that it had not served him with a notice of intent to habituali…
Authorities Cited
- Ginwright v. State, 466 So. 2d 409 (Fla. 2d DCA 1985)