WAYNE CARMICHAEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Wayne Carmichael appeals the summary denial of his post-conviction motion to withdraw guilty pleas, alleging his trial counsel misrepresented his eligibility for controlled release and promised he would serve only four to five years of a twenty-two year sentence. The court reverses and remands for an evidentiary hearing, finding the plea documents do not conclusively refute his allegations, and provides guidance to trial courts on procedures for preventing similar disputes.
The court reversed the summary denial and remanded for an evidentiary hearing because the written plea form and plea colloquy transcript do not conclusively refute Carmichael's misrepresentation allegations. The court held that if Carmichael proves his pleas were tainted by counsel's promise of controlled release eligibility, he must be allowed to withdraw those pleas.
[1] A defendant may be entitled to withdraw a guilty plea if it was induced by a misrepresentation from trial counsel regarding eligibility for early release.
[2] A written plea form and plea colloquy transcript do not conclusively refute a defendant's allegation of misrepresentation regarding early release eligibility if the alleg…
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Join FLexlaw to unlock all legal intelligence“a trial court is always well-advised, when accepting a plea, to ascertain whether any promises were made to the defendant apart from those discussed during the plea colloquy.”
Establishes the court's recommendation that trial judges should inquire into promises made outside the plea colloquy to prevent future disputes
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Join FLexlaw to unlock all legal intelligenceCarmichael entered negotiated guilty pleas based on his trial counsel's representation that he would only serve four to five years due to eligibility …
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LAZZARA, Judge.
Wayne Carmichael appeals the summary denial of his amended motion for post-conviction relief. He alleges that prior to his negotiated pleas of guilty his trial counsel represented to him that he would only serve four to five years of the twenty-two year sentence he was to receive based on his eligibility for the controlled release program. See § 947.146, Fla.Stat. (1991). He further alleges that but for this representation he would not have pled guilty. He has since learned from the Department of Corrections that he is not eligible for controlled release and now seeks to withdraw his pleas for a trial on the merits. If his sworn assertion about his trial counsel’s misrepresentation is true, he may be entitled to relief. Logan v. State, 619 So. 2d 350 (Fla. 2d DCA 1993).
We reverse and remand for an evidentiary hearing. In doing so, we find that the written plea form and the transcript of the plea colloquy attached to the trial court’s order do not conclusively refute Carmichael’s allegation of misrepresentation. Eady v. State, 622 So. 2d 61 (Fla. 1st DCA 1993). We also find it appropriate to make the following comments which we hope will prove beneficial in expeditiously resolving postconviction motions based on alleged unfulfilled promises of eligibility for early release.
We again reiterate that “a trial court is always well-advised, when accepting a plea, to ascertain whether any promises were made to the defendant apart from those discussed during the plea colloquy.” Simmons v. State, 611 So. 2d 1250, 1253 (Fla. 2d DCA 1992) (emphasis in original). It would be a simple matter during the plea dialogue to have the defendant affirm under oath that no one, especially the defendant’s counsel, has made any promises concerning eligibility for any form of early release authorized by law and the actual amount of time to be served under the sentence to be imposed. It would also be beneficial to have the defendant further acknowledge the absence of such promises in a written plea form, if one is routinely used by the judge.
Although we are not holding that such an inquiry is required, see Dolan v. State, 618 So. 2d 271, 273 n. 2 (Fla. 2d DCA 1993), such a procedure would add little to the burdens of the trial bench and would hopefully result in facilitating summary disposition of this type of case at the trial and appellate levels.1 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 face the sanctions of contempt or perjury. E.g., Thomas v. State, 210 So. 2d 488 (Fla. 2d DCA 1968).
On remand, if Carmichael sustains his burden under Dolan, and proves that his pleas of guilty were “tainted” by his trial counsel’s promise of eligibility for controlled release, the trial court must afford him an opportunity to withdraw those pleas. However, Carmichael “should be fully aware that such a move would return him to the status quo ante, whereby he would face” any appropriate sentence authorized by law should he subsequently be convicted. Colon v. State, 586 So. 2d 1805, 1306 (Fla. 2d DCA 1991).
Reversed and remanded with directions.
SCHOONOVER, A.C.J., and PARKER, J., concur. . This assumes that trial judges, when faced with a legally sufficient postconviction relief motion, will comply with the mandate of attaching to their summary orders of denial "a copy of that portion of the files and records that conclusively shows that the prisoner is entitled to no relief.” Fla.R.Crim.P. 3.850(d).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (21 total)
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State v. Leroux, 689 So. 2d 235 (Fla. 1996)…estimated computation of the time the defendant would actually serve, then such a defendant would have no basis to complain later. That is the practice the district courts have urged upon the trial courts in accepting pleas. In Carmichael v. State, 631 So. 2d 346, 347-48, (Fla. 2d DCA 1994), Judge Lazzara, writing for a unanimous court, stated: We again reiterate that “a trial court is always well-advised, when accepting a plea, to ascertain whether any promises were made to the defendant apart from those d…
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Bond v. State, 695 So. 2d 778 (Fla. 1st DCA 1997)…ions to the same effect in the district courts of appeal all share one common feature: in each case the defendant alleged that he had been advised about a material issue that was not addressed during the plea hearing. See, e.g., Carmichael v. State, 631 So. 2d 346 (Fla. 2d DCA 1994) (the record did not refute an allegation that defense counsel failed to advise the defendant he was ineligible for control release); Hamlin v. State, 627 So. 2d 569 (Fla. 2d DCA 1993) (the record did not refute an allegation that…
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Jones v. State, 680 So. 2d 585 (Fla. 4th DCA 1996)…uggested that trial courts make more focused inquiries concerning gain time or early release represen [*588] tations made out of court. See Leroux v. State, 656 So. 2d 558 (Fla. 4th DCA), rev. granted, 668 So. 2d 632 (Fla.1995); Carmichael v. State, 631 So. 2d 346 (Fla. 2d DCA 1994). AFFIRMED. STONE, J., concurs.- STEVENSON, J., dissents in part with opinion. . Attempted murder is a first degree felony. §§ 782.04(l)(a), 777.04(4)(b), Fla.Stat. (1995). Burdick v. State, 594 So. 2d 267 (Fla.1992), held that…
Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Simmons v. State, 611 So. 2d 1250 (Fla. 2d DCA 1992)
- Eligha Thomas v. State, 210 So. 2d 488 (Fla. 2d DCA 1968)
- Dolan v. State, 618 So. 2d 271 (Fla. 2d DCA 1993)
- Eady v. State, 622 So. 2d 61 (Fla. 1st DCA 1993)
- Colon v. State, 595 So. 2d 271 (Fla. 2d DCA 1992)
- Logan v. State, 619 So. 2d 350 (Fla. 2d DCA 1993)