JOHNNY FISHER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Fisher appeals the summary denial of his Rule 3.850 motion for post-conviction relief, claiming his trial counsel misrepresented the credit for time served he would receive under his plea agreement. The court reverses and remands for an evidentiary hearing, applying the Florida Supreme Court's holding in State v. Leroux that misrepresentation of sentence length by counsel can be grounds for post-conviction relief.
Fisher's allegations of counsel's misrepresentation regarding credit for time served are not conclusively refuted by the plea hearing record under Leroux, and he is entitled to an evidentiary hearing to pursue his Rule 3.850 motion. The ambiguous statement by defense counsel that the agreement included "credit for time served on all" at the plea hearing, combined with the trial court's later specification of lesser credits, creates a factual dispute requiring hearing.
[1] A defendant may be entitled to post-conviction relief when counsel misrepresents the length of a sentence a defendant must serve.
[2] A defendant's agreement during a plea colloquy that no one promised or threatened them to obtain a guilty plea is insufficient to conclusively refute a later claim that c…
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Join FLexlaw to unlock all legal intelligence“misrepresentation of counsel as to the length of a sentence a defendant must serve can be the basis for post-conviction relief”
Establishes the legal standard from Leroux that forms the basis for Fisher's relief
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Join FLexlaw to unlock all legal intelligenceFisher pled guilty in February 1996 to multiple drug and firearm offenses across four criminal cases based on a plea agreement. He alleges counsel pro…
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W. SHARP, Judge.
Fisher appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. In four different criminal cases, based on a plea agreement, Fisher pled guilty on February 23, 1996, to possession of cocaine,1 possession of a firearm by a convicted felon,2 three counts of delivery of cocaine,3 two counts of trafficking in cocaine,4 two counts of dealing in stolen property,5 and violating probation, in a case he had been convicted of possession of a firearm by a convicted felon. He alleges he had been offered a cap of 20 years with no habitualization, and a 4,545 days credit on all counts. He received concurrent sentences, the longest of which was 20 years, and he was not habitualized. However, he did not receive 4,545 days credit on all of his sentences.
The Florida Supreme Court held in State v. Leroux, 689 So. 2d 235 (Fla.1996), that misrepresentation of counsel as to the length of a sentence a defendant must serve can be the basis for post-conviction relief. In Le-roux, the court also held that a defendant’s agreement during a plea colloquy that no one promised him or threatened him to obtain a guilty plea was insufficient to conclusively refute a later claim that counsel misrepresented the length of a sentence.
In this case the trial court accepted the defendant’s guilty plea without mentioning credit for time served or how it would be allocated. The only mention of credit for time served in the transcript presented to us was at the plea hearings where defense counsel said the agreement included “credit for time served on all.” That statement is ambiguous, at best.
Only after accepting the plea and sentencing Fisher did the trial court specify the amount of credit for each sentence, which was less than 4,545 days for each. Thus, under Leroux, Fisher’s allegations are not refuted by the plea hearing. Accordingly, we reverse and remand for an evidentiary hearing.
REVERSED and REMANDED for hearing.
DAUKSCH and GOSHORN, JJ., concur. . § 893.13(6)(a), Fla. Stat. (1993).
. § 890-23, Fla. Stat. (1993).
. § 893.13(l)(a)l„ Fla. Stat. (1993).
. § 893.135(l)(b)l.c„ Fla. Stat. (1993)
. § 812.019, Fla. Stat. (1993)