JOHN L. THAMES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that allegations of trial counsel misadvising a defendant about the probable sentence length are sufficient to state a colorable claim of ineffective assistance of counsel.
[1] A defendant's claim of ineffective assistance of counsel based on affirmative misadvice from counsel regarding the probable length of sentence is sufficiently alleged whe…
[2] A trial court must either attach record excerpts conclusively refuting a colorable claim of ineffective assistance of counsel or conduct an evidentiary hearing.
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Join FLexlaw to unlock all legal intelligenceAppellant sought postconviction relief, alleging his trial counsel incorrectly advised him he would receive only one year in jail if he admitted viola…
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PER CURIAM.
Appellant challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without discussion the denial of most of appellant’s claims, but reverse and remand for further consideration of appellant’s claim that his trial counsel affirmatively misadvised him as to the probable length of sentence he would receive if he pled to violating the conditions of his probation.
Appellant pled nolo contendere to violating the terms of his probation and was sentenced to two concurrent terms of ten years’ imprisonment. He alleged in his 3.850 motion that prior to the revocation hearing at which he pled, his trial counsel had advised him that if he admitted to the violations, he either would be restored to probation or would receive only one year in the county jail. Appellant alleged in his motion that absent counsel’s misadviee, he would not have entered his plea to the violations. These allegations sufficiently allege a colorable claim of ineffective assistance of counsel. See, e.g., Little v. State, 673 So. 2d 151 (Fla. 1st DCA 1996); Eady v. State, 604 So. 2d 559, 561 (Fla. 1st DCA 1992). Because the only record excerpt attached to the trial court’s order denying relief does not conclusively refute this claim, we reverse and remand either for attachment of record excerpts conclusively refuting the claim or for an evidentiary hearing.1
MINER and WOLF, JJ„ and SHIVERS, Senior Judge, concur. . The trial court attached to its order denying relief only a copy of appellant’s original 1991 plea agreement which had resulted in the probationary split sentence that appellant violated. Record excerpts showing the terms of appellant's 1994 plea to violating the conditions of his probation may refute his claim as they would show whether appellant was made aware prior to the entry of that plea that his maximum incarcera-tive exposure for the violations exceeded one year in the county jail. See Keith v. State, 492 So. 2d 444, 445 (Fla. 1st DCA 1986).
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Citator
Cited By
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Thames v. State, 723 So. 2d 890 (Fla. 1st DCA 1998)…l court’s ruling in all respects except appellant’s allegation “that his trial counsel affirmatively misadvised him as to the probable length of sentence he would receive if he pled to violating the conditions of his probation.” See Thames v. State, 702 So. 2d 1368 (Fla. 1st DCA 1997). On remand, the trial court again denied appellant’s motion for post-conviction relief, and attached a copy of the probation hearing transcript to the order. We reverse. A claim that a defendant entered a plea of no contest bas…
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Gann v. State, 738 So. 2d 999 (Fla. 1st DCA 1999)…lea. Because Gann thus stated a facially sufficient claim of ineffective assistance of counsel, we reverse and remand for attachment of portions of the record that conclusively refute this claim or an evidentiary hearing. See, e.g., Thames v. State, 702 So. 2d 1368 (Fla. 1st DCA 1997); Little v. State, 673 So. 2d 151 (Fla. 1st DCA 1996). We affirm, without discussion, the trial court’s summary denial of Gann’s remaining claims. AFFIRMED in part and REVERSED and REMANDED in part. BARFIELD, C.J. and KAHN and…
Authorities Cited
- Eady v. State, 604 So. 2d 559 (Fla. 1st DCA 1992)
- Little v. State, 673 So. 2d 151 (Fla. 1st DCA 1996)
- Lugene Keith v. State, 492 So. 2d 444 (Fla. 1st DCA 1986)