LEROY DARNELL RICHARDSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Richardson appealed the denial of his motion to vacate his guilty plea, alleging his defense counsel misadvised him about whether his sentence would run consecutively or concurrently with another sentence. The court affirmed the denial, holding that Richardson failed to satisfy the prejudice prong of the Strickland ineffective assistance test because he did not allege he would not have entered the plea but for counsel's misadvice.
While defense counsel's misadvice about sentence consequences could constitute a prima facie basis for relief under certain circumstances, Richardson failed to satisfy the prejudice prong of the Strickland test because he did not allege that but for counsel's misadvice, he would not have entered the plea.
[1] An appellate court may affirm a trial court's order on any theory revealed by the appellate record, even if the trial court's reasoning was erroneous.
[2] A defendant seeking to vacate a judgment based on ineffective assistance of counsel must demonstrate prejudice, which requires alleging that but for counsel's misadvice,…
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Join FLexlaw to unlock all legal intelligence“Defense counsel has the obligation to ensure that a defendant understands the direct consequences of his plea.”
Establishes the standard for counsel's obligations regarding plea consequences, cited from Setzer v. State.
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Join FLexlaw to unlock all legal intelligenceRichardson entered a guilty plea after allegedly receiving misadvice from his defense counsel regarding whether his sentence would run consecutively o…
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MICKLE, Judge.
This is Leroy D. Richardson’s first appeal after a series of unsuccessful motions in the trial court alleging that he had been involuntarily induced to enter a plea based on defense counsel’s misadvice about whether his sentence would be consecutive or concurrent with an existing sentence from another case. We affirm the denial of his sworn motion to vacate judgment of conviction and sentence, although for a different reason from the one given by the trial court. Fla. R.Crim.P. 3.850; Robinson v. State, 393 So. 2d 33, 35 (Fla. 1st DCA 1981) (if trial court’s order is sustainable under any theory revealed by appellate record, affirmance is proper notwithstanding that it may have been entered for a different or even erroneous reason).
The sentencing court ordered the appellant’s sentence to run consecutively to another sentence in a different case. Under certain circumstances, an allegation that when a plea was being considered counsel erroneously indicated that the sentence would be ordered to run concurrently with another one would constitute a prima facie basis for relief. See Setzer v. State, 575 So. 2d 747 (Fla. 5th DCA 1991) (“[Djefense counsel has the obligation to ensure that a defendant understands the direct consequences of his plea.”).
However, in the case at bar, we agree with the state’s position that the appellant failed to satisfy the second prong (“prejudice” or detriment) of the test for demonstrating ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Kennedy v. State, 547 So. 2d 912 (Fla.1989).
As the required showing of prejudice in fact is to be “strictly applied,” any such claim should be “positive, specific and factual.” Young v. State, 608 So. 2d 111, 113 & n. 2 (Fla. 5th DCA 1992).
The instant motion is facially deficient in this respect because the appellant failed to state that, but for his attorney’s alleged misadvice, he would not have entered the plea. See, e.g., Taylor v. State, 647 So. 2d 854, 855 (Fla. 1st DCA 1994) (trial court properly denied facially insufficient claim that plea had been involuntarily induced as the result of ineffective assistance of counsel, where motion failed to allege that defendant would not have entered plea if attorney had not misrepresented consequences of plea); Thompson v. State, 599 So. 2d 244, 245 (Fla. 1st DCA 1992) (trial court properly denied allegation in post-conviction motion that defendant’s plea had been induced by counsel’s misrepresentation, where motion failed to allege that defendant would not have entered plea if counsel had given him correct information); McCoy v. State, 598 So. 2d 169, 170 (Fla. 1st DCA 1992); Duggan v. State, 588 So. 2d 1054 (Fla. 1st DCA 1991); Shaffner v. State, 562 So. 2d 430 (Fla. 1st DCA 1990).
AFFIRMED.
MINER and ALLEN, JJ., concur.
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Mason v. State, 742 So. 2d 370 (Fla. 1st DCA 1999)…9, 106 S.Ct. 366 (footnote omitted). It is not necessary to allege, in addition, that a defense existed to the charge. This court has consistently adhered to such a test. E.g., Regan v. State, 730 So. 2d 828 (Fla. 1st DCA 1999); Richardson v. State, 677 So. 2d 43 (Fla. 1st DCA 1996); McCoy v. State, 598 So. 2d 169 (Fla. 1st DCA 1992). Appellant alleged that, but for the erroneous information received from his attorney, he would have proceeded to trial on the possession of cocaine charge, rather than plead no…
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Roldan v. State, 695 So. 2d 864 (Fla. 4th DCA 1997)…iling to advise him of the amount of time he would serve in connection with his plea of guilty is legally insufficient, because appellant has not alleged that he would not have entered the plea had he been properly informed. See Richardson v. State, 677 So. 2d 43 (Fla. 1st DCA 1996) and cases cited therein and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). KLEIN, PARIENTE and GROSS, JJ., concur.…
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State v. Schiano, 696 So. 2d 531 (Fla. 4th DCA 1997)…97). On remand, Schiano should be given leave to amend his motion to correct the pleading deficiencies raised by the state. See Panno v. State, 517 So. 2d 129, 131 (Fla. 4th DCA 1987), review denied, 525 So. 2d 880 (Fla. 1988); Richardson v. State, 677 So. 2d 43, 44 (Fla. 1st DCA 1996); State v. Oisorio, 657 So. 2d 4, 5 (Fla. 3d DCA 1995), aff'd, 676 So. 2d 1363 (Fla.1996). REVERSED AND REMANDED. WARNER, SHAHOOD and GROSS, JJ., concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Kennedy v. State, 547 So. 2d 912 (Fla. 1989)
- Young v. State, 608 So. 2d 111 (Fla. 5th DCA 1992)
- McCOY v. State, 598 So. 2d 169 (Fla. 1st DCA 1992)
- Setzer v. State, 575 So. 2d 747 (Fla. 5th DCA 1991)
- Robinson v. State, 393 So. 2d 33 (Fla. 1st DCA 1981)
- Duggan v. State, 588 So. 2d 1054 (Fla. 1st DCA 1991)
- Shaffner v. State, 562 So. 2d 430 (Fla. 1st DCA 1990)
- Thompson v. State, 599 So. 2d 244 (Fla. 1st DCA 1992)
- Taylor v. State, 647 So. 2d 854 (Fla. 1st DCA 1994)