CHRISTOPHER ELWELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Christopher Elwell appealed the summary denial of his Rule 3.850 postconviction motion alleging ineffective assistance of counsel based on misrepresentations about his sentence and failure to investigate a voluntary intoxication defense. The appellate court reversed and remanded for an evidentiary hearing, finding the claims were sufficiently pleaded to require a hearing rather than summary dismissal.
Elwell's two ineffective assistance of counsel claims were sufficiently pleaded to entitle him to either record attachments that conclusively refute the claims or an evidentiary hearing. The trial court's attachments (plea agreement and sentencing guidelines scoresheet) did not conclusively refute the claims, requiring remand for an evidentiary hearing.
[1] A claim of ineffective assistance of counsel based on affirmative misrepresentations by counsel regarding the actual sentence to be served is sufficiently pled to require…
[2] A defendant must allege that counsel affirmatively misrepresented the defendant's eligibility for gain time and that the defendant relied on this erroneous advice in maki…
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Join FLexlaw to unlock all legal intelligence“each of these claims is sufficiently pled to entitle appellant either to attachments from the record that conclusively refute this claim or an evidentiary healing”
Establishes the standard for postconviction relief claims—either conclusive refutation or an evidentiary hearing is required
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Join FLexlaw to unlock all legal intelligenceElwell pled guilty to aiding and abetting armed robbery and grand theft, receiving a sentence of thirty years in prison followed by ten years' probati…
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PER CURIAM.
Elwell appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.
Appellant pled guilty to charges of aiding and abetting robbery while armed and grand theft and was sentenced to thirty years in prison followed by ten years’ probation, the sentence the state agreed to recommend in the plea bargain. Appellant raised the following two claims of ineffective assistance of counsel in his motion for postconviction relief: (1) that, but for his trial counsel’s affirmative misrepresentations to him and his mother regarding the amount of his 30-year sentence that he would actually serve, appellant would not have pled guilty and would have opted for trial; and (2) that after being informed that appellant was intoxicated with drugs and alcohol during the offenses, counsel did not investigate the defense before rejecting it and leading appellant to believe that voluntary intoxication is not a defense to the crime of aiding and abetting a robbery while armed. The trial court found that these claims were conclusory and did not entitle appellant to relief. In addition the trial court attached to its order a copy of the plea agreement and the sentencing guidelines scoresheet.
Contrary to the trial court’s ruling, each of these claims is sufficiently pled to entitle appellant either to attachments from the record that conclusively refute this claim or an evidentiary healing, and the attachments to the court’s order in the instant case do not conclusively refute these claims. See State v. Leroux, 689 So. 2d 235 (1996)(remanding for evidentiary hearing where record attachments did not conclusively refute ineffective assistance claim based on alleged erroneous advice regarding amount of sentence defendant actually would serve pursuant to plea bargain); Eady v. State, 604 So. 2d 559 (Fla. 1st DCA 1992)(defendant must allege counsel affirmatively misrepresented defendant’s eligibility for gain time and that defendant relied on this affirmative erroneous advice in making plea decision); Brunson v. State, 605 So. 2d 1006,1007 (Fla. 1st DCA 1992)(holding defendant’s claim that counsel failed to investigate and consider voluntary intoxication defense despite information that appellant consumed alcohol arid smoked crack cocaine a short time before offense was sufficient “to set forth the claim of ineffective assistance of trial counsel despite the fact that appellant signed a plea agreement indicating his satisfaction with counsel’s performance”). The state concedes that the claims are sufficiently pled and the cause should be remanded for evidentiary hearing. We agree.
Accordingly, without expressing any opinion regarding the merits of appellant’s claim, we reverse and remand for proceedings consistent with this opinion.
MINER, LAWRENCE and PADOVANO, JJ., concur.
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Citator
Cited By
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Benton v. State, 763 So. 2d 548 (Fla. 1st DCA 2000)…offenses. Appellant further alleged that he would not have pled no contest to charges of armed robbery and burglary had he not been so misinformed. This claim is facially sufficient and is not conclusively refuted by the record. See Elwell v. State, 693 So. 2d 1137 (Fla. 1st DCA 1997); Worden v. State, 688 So. 2d 958 (Fla. 4th DCA 1997); Whitty v. State, 687 So. 2d 869, 870 (Fla. 2d DCA 1997). Accordingly, the cause is reversed and remanded for evidentiary hearing. BARFIELD, C.J., MINER and PADOVANO, JJ., CO…
Authorities Cited
- State v. Leroux, 689 So. 2d 235 (Fla. 1996)
- Eady v. State, 604 So. 2d 559 (Fla. 1st DCA 1992)
- Thornton Brunson v. State, 605 So. 2d 1006 (Fla. 1st DCA 1992)