TONY MCCOWAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tony McCowan appeals the trial court's summary denial of his Rule 3.850 motion for postconviction relief, claiming his guilty plea to escape was involuntary because counsel misled him about whether accrued gain time would be applied to his escape sentence. The court reverses, finding the record does not conclusively refute his claims.
The court reversed the summary denial order because the files and records attached to the trial court's order do not conclusively refute McCowan's colorable claims for relief. The plea transcript alone does not conclusively refute his assertion that counsel misled him about gain time application.
[1] A trial court's summary denial of a motion for postconviction relief is reversible error when the attached files and records fail to conclusively refute the claims presen…
[2] A guilty plea may be deemed involuntary if entered as a result of counsel's affirmative misrepresentation regarding the application of accrued gain time.
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“The files and records attached to the trial court's order fail to conclusively refute the claims that were properly before the trial court on the appellant's motion.”
Establishes the legal standard for summary denial of postconviction motions—the record must conclusively refute the claims.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMcCowan pled guilty to escape and was sentenced to 24 months consecutive to his cocaine sentence. While incarcerated for the cocaine offense, he accru…
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PER CURIAM.
The appellant challenges an order by which the trial court summarily denied his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We conclude that the files and records attached to the trial court’s order fail to conclusively refute the claims that were properly before the trial court on the appellant’s motion. We therefore reverse the order and remand this case to the trial court.
The appellant pled guilty to escape and was sentenced to a term of 24 months to run consecutive to the sentence he was then serving for sale of cocaine. While incarcerated for his first offense, the appellant accrued an unspecified amount of gain time. Upon returning to prison after pleading guilty to the escape, the appellant learned that his gain time would be forfeited in accordance with section 944.28(1), Florida Statutes. In his motion, the appellant claims that his counsel affirmatively misled him by promising that his accrued gain time would be applied against his sentence for escape. The appellant alleged that as a result of this erroneous information, his plea of guilty was entered involuntarily. He also alleged that he would not have entered a plea of guilty but for the incorrect advice of his counsel.
The appellant’s motion set forth a color-able claim for relief. See Little v. State, 673 So. 2d 151 (Fla. 1st DCA 1996); Eady v. State, 604 So. 2d 559 (Fla. 1st DCA 1992). The trial court attached to the order the transcript of the appellant’s plea wherein the appellant acknowledged his understanding that his sentence for escape would be served only upon completion of the sentence for sale of cocaine. But the transcript does not conclusively refute the appellant’s assertion that he was advised and understood that the previously earned gain time would be applied against his sentence for escape. And the attachments do not otherwise conclusively refute the appellant’s claims.
The order is accordingly reversed and this case is remanded to the trial court for an evidentiary hearing or attachment of portions of the trial court record which conclusively refute the appellant’s claims.
MINER, ALLEN and MICKLE, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Eady v. State, 604 So. 2d 559 (Fla. 1st DCA 1992)
- Little v. State, 673 So. 2d 151 (Fla. 1st DCA 1996)