ADRIAN BURNHAM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the record did not conclusively refute the defendant's claim of attorney misadvice regarding his sentence length.
The defendant appealed the summary denial of his postconviction relief motion, alleging his attorney gave him erroneous advice about his prison senten…
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PER CURIAM.
The defendant, Adrian Burnham, appeals the summary denial of his rule 3.850 motion for postconviction relief. He alleges that, in entering his plea of nolo contendere, he relied on his attorney’s erroneous advice that he would serve only about eighteen months in prison. The trial court denied the motion, finding that the written plea agreement, the transcript of the plea colloquy, and the transcript of the sentencing hearing conclusively showed that he was entitled to no relief.
However, these portions of the record do not conclusively refute the instant claim of positive misadvice. See State v. Leroux, 689 So. 2d 235 (Fla.1997).
We therefore reverse the trial court’s order denying the defendant’s claim. On re mand, the trial court must either hold an evidentiary hearing or attach to its order those portions of the record that conclusively show that the defendant’s attorney did not give him positive misadvice concerning the length of his sentence.
Reversed.
MICKLE, LAWRENCE and PADOVANO, JJ., concur.
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Bates v. State, 887 So. 2d 1214 (Fla. 2004)…ant’s decision to commit another felony, not the wrong advice, that produces the enhanced sentence. In this case, counsel’s wrong advice about the potential for future sentence enhancement did not affect Bates’s 1990 sentence. Cf. Burnham v. State, 702 So. 2d 303, 303 (Fla. 1st DCA 1997) (addressing claim of affirmative misadvice regarding actual time to be served). Nor did it have collateral civil effects such as deportation or loss of employment. See, e.g., Sallato, 519 So. 2d at 605 (addressing claim of m…
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Bates v. State, 818 So. 2d 626 (Fla. 1st DCA 2002)…nd prejudice prongs of Strickland are satisfied and the plea may be withdrawn. See, e.g., State v. Leroux, 689 So. 2d 235 (Fla.1997); State v. Sallato, 519 So. 2d 605 (Fla.1988); Romero v. State, 729 So. 2d 502 (Fla. 1st DCA 1999); Burnham v. State, 702 So. 2d 303 (Fla. 1st DCA 1997). These post-Ginebra decisions are fully consistent with 'federal' precedent, See, e.g., Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Despite the fact that the appellant in the present case has alleged wh…
Authorities Cited
- State v. Leroux, 689 So. 2d 235 (Fla. 1996)