JOSE FERNANDEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal reversed the trial court's summary denial of Jose Fernandez's rule 3.850 motion for postconviction relief because the trial court failed to hold an evidentiary hearing or attach record excerpts addressing legally sufficient claims of involuntary plea and improper restitution.
The court held that Fernandez's third, fifth, and seventh grounds for relief were legally sufficient and required either an evidentiary hearing or attachment of record excerpts refuting the claims. The trial court's summary denial without these procedural requirements was improper and reversed.
[1] A trial court's summary denial of a motion for postconviction relief is reversible error when it fails to attach record excerpts that conclusively refute the movant's cla…
[2] Allegations that a guilty plea was involuntarily entered due to misrepresentation of the maximum possible sentence constitute a legally sufficient ground for postconvicti…
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Join FLexlaw to unlock all legal intelligence“An allegation that the plea was involuntarily entered is a legally sufficient ground for posteonviction relief, requiring the reversal of an order denying the motion without an evidentiary hearing or the attachment of portions of the record refuting the appellant's claims.”
Establishes that claims of involuntary plea due to misrepresentation require evidentiary hearing or record attachment before summary denial
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Join FLexlaw to unlock all legal intelligenceFernandez filed a rule 3.850 postconviction motion raising seven grounds for relief. His third and fifth grounds alleged that the trial court and appo…
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PER CURIAM.
We reverse the trial court’s summary denial, without the attachment of any record excerpts, of appellant’s rule 3.850 motion for posteonviction relief. The trial court attached to its order of denial only the state’s response, which conceded that two of the claims were legally sufficient and needed to be addressed by evidentiary hearing.
We have determined that appellant’s third, fifth, and seventh grounds for relief were legally sufficient. Appellant’s third and fifth grounds were that the trial court and appointed defense counsel, respectively, coerced him into changing his plea to guilty by misrepresenting the maximum possible sentence, thereby rendering his plea involuntary; otherwise, he stated, he would not have entered the plea. An allegation that the plea was involuntarily entered is a legally sufficient ground for posteonviction relief, requiring the reversal of an order denying the motion without an evidentiary hearing or the attachment of portions of the record refuting the appellant’s claims. See Griffin v. State, 573 So. 2d 979 (Fla. 5th DCA 1991).
Appellant’s seventh claim was that the trial court erred by imposing an amount of restitution to be paid by appellant to the victim without first making a proper assessment of the missing property or conducting a restitution hearing to determine appellant’s ability to pay. In determining whether to order restitution and the amount of restitution, the trial court is required to consider the amount of loss sustained by the victim and the financial resources of the defendant and his or her present and future financial needs and earning ability. See § 775.089(6), Fla. Stat. (1995). A defendant who agrees to an amount of restitution as part of a plea agreement and fails to argue the inability to pay waives the protection of the statute. See Blasco v. State, 601 So. 2d 1264, 1266 (Fla. 3d DCA 1992). However, on a rule 8.850 motion, based on the protection of that statute, the trial court cannot deny the motion without attaching to its denial those portions of the record which show that such payment was part of the plea agreement and that the movant waived the right to a hearing on ability to pay. See McManamon v. State, 609 So. 2d 91 (Fla. 1st DCA 1992) (reversing and remanding summary denial of rule 3.850 motion for further proceedings or portions of record conclusively showing movant waived right to inquiry into ability to pay).
Therefore, the order denying relief is reversed and remanded to the trial court for an evidentiary hearing or the attachment of record excerpts conclusively showing appellant is entitled to no relief with respect to the foregoing claims.
REVERSED AND REMANDED.
WARNER, FARMER and SHAHOOD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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O'Bryant v. State, 765 So. 2d 745 (Fla. 1st DCA 2000)…postsentencing via rule 3.850 motions for postconviction relief have been held legally sufficient to require either attachment of those portions of the record conclusively refuting the allegations or an evi-dentiary hearing. See Fernandez v. State, 701 So. 2d 632 (Fla. 4th DCA 1997); Gilyard v. State, 675 So. 2d 950 (Fla. 1st DCA 1996). No portions of the record on appeal conclusively refute appellant’s legally sufficient claim that his plea had been entered involuntarily without an understanding of the act…
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Fernandez v. State, 782 So. 2d 944 (Fla. 4th DCA 2001)…allow him to proceed to trial. REVERSED and REMANDED. KLEIN, SHAHOOD and TAYLOR, JJ„ concur. . This court's reversal of the summary denial identified three claims that were legally sufficient: the third, fifth and seventh. See Fernandez v. State, 701 So. 2d 632, 632 (Fla. 4th DCA 1997). The evidentiary hearing concerned all three, but in the instant appeal, appellant did not claim error in the trial court’s denial of his seventh claim.…
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Domin v. State, 712 So. 2d 847 (Fla. 4th DCA 1998)…restitution amount that was once discussed to be made part of a plea. State concedes and we agree that these issues cannot be resolved without either record attachments to refute appellant’s claim or an evidentiary hearing. See Fernandez v. State, 701 So. 2d 632 (Fla. 4th DCA 1997). Accordingly, we reverse and remand for further proceedings. REVERSED AND REMANDED. STONE, C.J., and STEVENSON and SHAHOOD, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Griffin v. State, 573 So. 2d 979 (Fla. 5th DCA 1991)
- Blasco v. State, 601 So. 2d 1264 (Fla. 3d DCA 1992)
- McMANAMON v. State, 609 So. 2d 91 (Fla. 1st DCA 1992)