JOSEPH MILLS RIPLEY, IV, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Joseph Ripley challenged denial of his motion for postconviction relief based on claims of ineffective assistance of counsel. The court affirmed the denial of three grounds but reversed and remanded regarding Ripley's claim that counsel promised specific gain time credits that were not delivered, requiring either record clarification or an evidentiary hearing.
The court affirmed dismissal of three grounds for relief but reversed and remanded as to the claim regarding counsel's alleged erroneous advice concerning gain time eligibility, as this claim was not conclusively refuted by the record and requires either record attachments showing conclusive refutation or an evidentiary hearing.
[1] A motion for postconviction relief may be denied without an evidentiary hearing if the grounds raised are refuted conclusively by the record.
[2] A defendant may seek to withdraw a guilty plea based on ineffective assistance of counsel if counsel provided erroneous advice regarding the sentence to be served.
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“while the trial court asked whether anyone had promised him "any other type of sentence to cause you to plead guilty," nothing in the record conclusively refutes "trial counsel's alleged erroneous advice concerning ... his eligibility for gain time."”
The court's rationale for why the gain time claim was not conclusively refuted and required remand, distinguishing it from the refuted claims about base sentence.
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Join FLexlaw to unlock all legal intelligenceRipley entered a guilty plea and claimed his trial counsel promised him 3 years prison time with 1/3 off and 20 days a month incentive gain time. Inst…
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PER CURIAM.
The appellant, Joseph Ripley, IV, challenges an order by which his motion for posteonviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, was denied. He raises four grounds allegedly entitling him to postconviction relief. Grounds one, three, and four are without merit or refuted conclusively by the record, and, accordingly, we affirm them without discussion. However, ground two, through which appellant seeks to withdraw his guilty plea due to ineffective assistance of counsel, is not refuted conclusively by the record. Therefore, we must reverse and’ remand for record attachments that conclusively refute this claim or for an evidentiary hearing.
As in State v. Leroux, 689 So. 2d 235 (Fla. 1996), appellant alleges that when entering his plea he relied on advice of counsel as to the amount of time that he would serve in prison. Specifically, he claims that counsel promised “3 years prison time with 1/3 off and 20 days a month incentive gain time.” Instead, he received a six year prison sentence, followed by nine years of probation, and he claims that he is not entitled to nearly as much gain time as he was promised. Appellant acknowledged under oath at the sentencing hearing that his minimum sentence under the guidelines was three and one-half years. Thus, that portion of his claim is refuted conclusively. On the other hand, while the trial court asked whether anyone had promised him “any other type of sentence to cause you to plead guilty,” nothing in the record conclusively refutes “trial counsel’s alleged erroneous advice concerning ... his eligibility for gain time.” Id. at 236. Accordingly, we remand solely for a determination on the alleged promises about gain time.
AFFIRMED in part,' REVERSED in part and REMANDED;
BARFIELD, C.J., JOANOS, J., and SMITH, LARRY G., Senior Judge, concur.
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- State v. Leroux, 689 So. 2d 235 (Fla. 1996)