ERNEST M. STEELE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant's acknowledgment at a plea hearing that no promises were made, other than those stated, is sufficient to support a summary denial of a post-conviction claim alleging counsel misrepresentation about gain time eligibility.
Defendant sought post-conviction relief, alleging counsel misrepresented his eligibility for gain time. His initial motion was amended to claim affirm…
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PER CURIAM.
Defendant has moved for rehearing of our opinion filed April 20, 1994. We withdraw our opinion, substitute the following opinion and deny defendant’s motion for rehearing.
Defendant appeals the summary denial of his motion for post-conviction relief. In the first verified motion, defendant alleged that his plea was involuntary because his trial counsel failed to inform him that he would not be eligible for gain time as a habitual offender. After the state responded with case law demonstrating that defendant’s argument was legally insufficient, defendant filed a sworn motion to amend. He alleged that he had made several “typos” in his motion and that he had really meant to state that his trial counsel had affirmatively mis represented to him that he would be eligible for gain time under the plea agreement. Defendant’s explanation that his substantially changed story from the first motion to the second motion was a typographical error lacks any semblance of believability.
Even accepting defendant’s belated story as true, we nonetheless affirm the trial court’s denial of defendant’s motion for post-conviction relief. On the issue of counsel’s alleged misrepresentation of defendant’s eligibility for gain time, the record reflects defendant’s acknowledgment at his plea hearing that no “promises,” other than those referred to at the plea hearing, had been made to him by anyone. This inquiry and response is sufficient to support a summary denial of his claim. See Zaetler v. State, 627 So. 2d 1328 (Fla. 3d DCA 1993), rev. denied, 639 So. 2d 984 (Fla.1994).
However because gain time affects the length of a defendant’s incarceration, we agree with the second district in Carmichael v. State, 631 So. 2d 346 (Fla. 2d DCA 1994), which announced in dicta, that it would be preferable for a trial court to ask a specific question as to promises concerning gain time:
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....
Id. at 347 (emphasis added).
In Carmichael, an evidentiary hearing was required because there was no inquiry by the trial court as to any promises made to the defendant apart from those discussed during the plea colloquy; thus, it is distinguishable from this case. Here an inquiry as to such promises was made, which is sufficient to summarily defeat defendant’s motion, especially in light of the dubious manner in which his claims and sworn allegations were presented to the court.
GLICKSTEIN and PARIENTE, JJ., and HARRY LEE ANSTEAD, Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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McCONN v. State, 708 So. 2d 308 (Fla. 2d DCA 1998)…majority opinion concedes conflict with the Fourth and Fifth Districts. See Shaw v. State, 654 So. 2d 608 (Fla. 4th DCA 1995); Nava v. State, 659 So. 2d 1314 (Fla. 4th DCA 1995); Bryant v. State, 661 So. 2d 951 (Fla. 4th DCA 1995); Steele v. State, 645 So. 2d 59 (Fla. 4th DCA 1994); Rozier v. State, 603 So. 2d 120 (Fla. 5th DCA 1992). I suggest that, at the least, the conflict be certified. [*312] Rule 3.850(f) provides the trial court an opportunity to determine that a pleading subsequent to the first moti…
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Jones v. State, 680 So. 2d 585 (Fla. 4th DCA 1996)…voluntariness on the basis of something that should have been cleared up at the time of the plea. Although this case does not involve a claim that defendant was misled about the sentence actually imposed, it is closely analogous to Steele v. State, 645 So. 2d 59 (Fla. 4th DCA 1994). There a defendant claimed in a Rule 3.850 motion that his plea was involuntary because defense counsel failed to inform him that he would not be eligible for gain time as an habitual offender. We affirmed the summary denial of t…
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Leroux v. State, 656 So. 2d 558 (Fla. 4th DCA 1995)…affirm a summary denial. When accepting a plea, trial courts are well advised at a minimum to ascertain whether any promises were made to a defendant concerning the sentence apart from those discussed during the plea colloquy. See Steele v. State, 645 So. 2d 59 (Fla. 4th DCA 1994). In Steele, we affirmed the summary denial of the defendant’s motion for post-conviction relief based on the defendant’s acknowledgment at his plea hearing that no “promises,” other than those referred to at the plea hearing, had…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carmichael v. State, 631 So. 2d 346 (Fla. 2d DCA 1994)
- Dolan v. State, 618 So. 2d 271 (Fla. 2d DCA 1993)
- Zaetler v. State, 627 So. 2d 1328 (Fla. 3d DCA 1993)