ROGELIO RODRIGUEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Rogelio Rodriguez appeals an order summarily denying a Rule 3.850 motion and an order revoking probation.
We reverse the order summarily denying Rodriguez post-conviction relief and remand for further proceedings. Rodriguez contends that he was not aware of the maximum penalty upon entry of his plea. Fla.R.Crim.P. 3.172(c)(1).
The trial court concluded that Rodriguez “knew he was looking at substantial prison time upon a violation, a sentence in excess of twenty-seven years State Prison.” The record fails to refute Rodriguez’ claim. On remand, the trial court must conduct an evidentiary hearing. Griffin v. State, 644 So. 2d 351 (Fla. 3d DCA 1994).
We affirm the order revoking probation as modified. We strike the portion of the order finding that Rodriguez failed to submit timely for a drug test.
SCHWARTZ, Chief Judge
(specially concurring in part).
While I concur in the determination to afford the appellant an evidentiary hearing on his 3.850 claim, I would emphasize that, to establish his right to relief because the trial court did not inform him of the maximum possible penalty before accepting his original plea, see Fla.R.Crim.P. 3.172(c)(1), he will be required to demonstrate that he was prejudiced by that mistake, Fla.R.Crim.P. 3.172(i); that is, both that he did not otherwise know of the potential penalty and, as he swore under oath, that “he would not have entered into the plea” — to an extremely lenient sentence of community control and probation — if he had known. See Mickens v. State, 562 So. 2d 856 (Fla. 1st DCA 1990); Baker v. State, 344 So. 2d 597 (Fla. 1st DCA 1977).
NESBITT, J., concurs.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Loic Gadson v. State, 807 So. 2d 817 (Fla. 4th DCA 2002)…e merits of the underlying motion, Appellant claims he was not advised of the maximum possible sentence, and he would not have entered the plea had he known of the maximum possible sentence. This claim is facially sufficient, see Rodriguez v. State, 645 So. 2d 1124 (Fla. 3d DCA 1994), and Byrd v. State, 643 So. 2d 1209 (Fla. 1st DCA 1994), and the record portions relied upon by the circuit court do not conclusively refute that claim. [*818] The order denying the motion, therefore, is reversed and the case is r…
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Rodriguez v. State, 688 So. 2d 425 (Fla. 3d DCA 1997)…PER CURIAM. This is an appeal alter remand for an evidentiary hearing on appellant’s motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. See Rodriguez v. State, 645 So. 2d 1124 (Fla. 3d DCA 1994). The trial court’s factual findings are supported by the record, and it was within the province of the trial court to make credibility determinations. Affirmed.…
Authorities Cited
- Baker v. State, 344 So. 2d 597 (Fla. 1st DCA 1977)
- Mickens v. State, 562 So. 2d 856 (Fla. 1st DCA 1990)
- Alsonso Duhart v. State, 644 So. 2d 351 (Fla. 3d DCA 1994)