ROBERT G. COHS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Cohs appealed a post-conviction motion challenging his plea and sentencing, alleging that two separate judgments were entered and that he was denied sentencing under the guidelines. The appellate court reversed and remanded on two of three issues, finding the trial court's record insufficiently supported its denials and requiring an evidentiary hearing.
The court reversed and remanded on issues one and three, finding the record did not conclusively refute Cohs's allegations and requiring an evidentiary hearing. The court affirmed on issue two because, although the former counsel did participate in sentencing, Cohs failed to demonstrate any resulting prejudice.
[1] A criminal defendant's allegations that two separate judgments were entered against him are not conclusively refuted when the record only attaches the second judgment and…
[2] A defendant must demonstrate prejudice to prevail on a claim that prior counsel improperly participated in the sentencing process.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We remand for attachment of the first judgment because the record presently before us does not conclusively refute the defendant's allegations.”
Establishes that the trial court's record must affirmatively support its factual findings; a conclusory assertion is insufficient.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCohs received judgments against him both at the time of his plea and months later at sentencing. The trial court acknowledged this but claimed one jud…
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PER CURIAM.
In this appeal filed pursuant to Florida Rule of Criminal Procedure 3.850, the appellant raises three substantive issues. We reverse and remand for further proceedings on issues one and three, and affirm the second issue for the reasons expressed below.
Robert Cohs alleges that judgments were entered against him both at the time of his plea and several months later at sentencing. The trial court conceded this in its order, but attached only the second judgment, claiming one was mere surplusage. We remand for attachment of the first judgment because the record presently before us does not conclusively refute the defendant’s allegations.
Cohs’ second point is that his initial counsel, who had withdrawn, participated in the sentencing process. This the trial judge denied, indicating that counsel was merely present in the courtroom during sentencing. The record indicates otherwise, and shows that the prior counsel did in fact engage in representation of the defendant during this phase of the case. However, Cohs fails to demonstrate any prejudice, and, accordingly, we affirm the finding of the trial court.
Thirdly, Cohs asserts that he was entitled to be sentenced pursuant to the guidelines. The court denied relief because Cohs entered into a negotiated plea. However, while counsel appeared at sentencing to concur on the negotiated plea, the record before us does not contain a transcript of the plea hearing or any other indication of the defendant’s acquiescence in same during the proceedings.
We therefore remand for further proceedings. Unless portions of the record or files exist conclusively refuting the appellant’s assertions that two separate judgments were entered against him and that he was expecting a guideline sentence when he entered his plea, the trial court must conduct an evidentiary hearing on these claims. Any party aggrieved by the subsequent action of the trial court must file a timely notice of appeal to obtain further appellate review.
Affirmed in part, reversed in part and remanded for further proceedings.
CAMPBELL, A.C.J., and PATTERSON and LAZZARA, JJ., concur.