ALBERTO J. OBAYA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that an evidentiary hearing was necessary because the record did not conclusively show the appellant was entitled to no relief regarding his sentencing.
The defendant pled no contest to burglary and later entered a plea bargain for a nine-year sentence with a mandatory minimum. The defendant alleged th…
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PER CURIAM.
Alberto Obaya (“the defendant”) appeals the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850. For the following reasons we reverse.
In 1993, the defendant pled no contest to a charge of burglary of an unoccupied dwelling and was sentenced to a term of nine years. While on community control in 1996, the defendant was arrested for possession of a firearm by a convicted felon. The defendant entered into a plea bargain with the prosecutor. As a result, he agreed to a nine-year sentence with a thirty-seven month mandatory minimum as a habitual offender to run concurrent and coterminous with the 1993 sentence.
The defendant alleges in his motion for post conviction relief that the Department of Corrections’ records indicate his tentative release date for the 1996 sentence is 2005, i.e., three years past the expiration of the 1993 sentence. Further, the defendant alleges that he did not receive the total amount of credit for time served. Pursuant to Florida Rule of Appellate Procedure 9.140(i), this court is required to reverse for an evidentiary hearing “unless the record shows conclusively that the appellant is entitled to no relief.” Nothing before this court has resolved the apparent conflict between the trial court’s order and the administration of that order by the Department of Corrections. Therefore, we hold that an evidentiary hearing was necessary. Moreover, if it is impossible for the agreed sentence to be carried out under state law, then the defendant has a right to withdraw his plea. See Brod v. State, 437 So. 2d 152 (Fla. 1983); Knight v. State, 611 So. 2d 602 (Fla. 2d DCA 1993) (“Since [defendant] did not receive the sentence for which he originally bargained and was not informed of the impossibility of carrying out that sentence, the interests of justice mandate that he be given the opportunity to withdraw his plea.”)
Reversed and remanded.
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Pearson v. Moore, 767 So. 2d 1235 (Fla. 1st DCA 2000)…enactment of the Stop Turning Out Prisoners Act, Ch. 95-294, §§ 1, 2, and 5, at 2717-2718, Laws of Fla., the Second and Third Districts have concluded that coterminous sentences may be legally impossible in certain circumstances. See Obaya v. State, 723 So. 2d 924, 925 (Fla. 3d DCA 1999); Turner v. State, 689 So. 2d 1107, 1110 (Fla. 2d DCA 1997); see also Nieves v. State, 24 Fla. L. Weekly D591, - So. 2d -, 1999 WL 104437 (Fla. 3d DCA Feb.24, 1999). On this premise, those courts approved defendants' withdrawi…
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Riley v. State, 743 So. 2d 148 (Fla. 1st DCA 1999)…he would be eligible for consideration and a possibility that he would be selected to attend.” Where a defendant bargains for a sentence which is impossible to be carried out, he should be given an opportunity to -withdraw his plea. Obaya v. State, 723 So. 2d 924 (Fla. 3d DCA 1999); see also Mason v. State, 742 So. 2d 370 (Fla. 1st DCA 1999)(misadvice of counsel can constitute a basis for post-conviction relief). The transcript of the plea/sentencing hearing, rather than refuting appellant’s claim [*150] tha…
Authorities Cited
- Brod v. State, 437 So. 2d 152 (Fla. 1983)
- Knight v. State, 611 So. 2d 602 (Fla. 2d DCA 1993)