VINCENT D. DAYS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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WOLF, Judge.
Days appeals from an order summarily denying his motion for postconvietion relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. Appellant alleges that his plea was not voluntary because of misinformation provided by his attorney concerning his eligibility for gaintime. There was no allegation by the appellant that he would not have entered the plea had he been given the correct information. Matthews v. State, 614 So. 2d 25 (Fla. 1st DCA 1993). Without this allegation, the petition is deficient. Id. at 26.
Since appellant may be able to properly allege reliance on the incorrect advice of counsel, our affirmance is without prejudice to appellant to pursue a subsequent 3.850 motion on the grounds of ineffective assistance of counsel.
WEBSTER, J., concurs.
BOOTH, J., specially concurring with written opinion.
BOOTH, Judge,
specially concurring.
I agree that the motion is fatally defective on the ground stated by the majority. On that basis we affirm the trial court’s order. It should not be inferred from the “without prejudice” language of the opinion that the petition is otherwise sufficient.
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State v. Taylor, 738 So. 2d 988 (Fla. 2d DCA 1999)…el misad-vised him, Mr. Taylor failed to allege or prove that he would not have accepted the plea agreement but for this misadvice, an element necessary for postconviction relief. See Davis v. State, 697 So. 2d 957 (Fla. 2d DCA 1997); Days v. State, 637 So. 2d 66 (Fla. 1st DCA 1994). We find this omission unsurprising given that, without the plea agreement, Mr. Taylor was facing a potential of two consecutive life sentences with 25-year minimum mandatories if convicted on both informations. The trial court e…
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Rankin v. State, 861 So. 2d 1222 (Fla. 2d DCA 2003)…earing. However, where a defendant claims that his plea was involuntarily entered based on a mistake or based on misinformation, he must still allege “that he would not have entered the plea had he been given the correct information.” Days v. State, 637 So. 2d 66, 66 (Fla. 1st DCA 1994); see also State v. Taylor, 738 So. 2d 988, 989 (Fla. 2d DCA 1999). Rankin, if he is able, may present this claim in a subsequent motion. Rankin also alleged that trial counsel was ineffective for failing to object that five…
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- Cmty. Hosp. OF THE Palm Beaches, Inc. v. Dep't OF Banking & Fin., 614 So. 2d 25 (Fla. 1st DCA 1993)
- Matthews v. State, 614 So. 2d 25 (Fla. 1st DCA 1993)