LANARD HOLMES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lanard Holmes appealed the trial court's summary denial of his motion to withdraw his guilty plea under Florida Rule of Criminal Procedure 3.850. The appellate court affirmed the denial of two grounds but reversed and remanded on the second ground, finding that Holmes raised legally sufficient allegations that his trial counsel gave him incorrect advice about his potential sentence.
The court reversed and remanded on Holmes' second ground for relief, finding his allegations legally sufficient to warrant further review. The trial court must either attach record portions that conclusively demonstrate Holmes is entitled to no relief or conduct an evidentiary hearing.
[1] A defendant's allegations of ineffective assistance of counsel based on erroneous advice regarding potential sentencing are legally sufficient to warrant further review w…
[2] A trial court must either attach record portions conclusively demonstrating a defendant is entitled to no relief or conduct an evidentiary hearing when a motion to withdr…
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“Holmes alleges that trial counsel advised him that if he went to trial "the chances were great that he would be convicted of each of the charges and would more than likely spend the rest of my life in prison".”
Establishes the alleged incorrect legal advice that formed the basis of Holmes' plea withdrawal claim.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHolmes pleaded guilty to home invasion with a firearm after his trial counsel allegedly advised him that if he went to trial, he would likely be convi…
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PER CURIAM.
The appellant, Lanard Holmes, challenges the trial court’s summary denial of his motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.850. Holmes raises three grounds for relief in his motion. We affirm the trial court’s denial of the first and third ground without discussion, but we reverse and remand for further proceedings on his second ground.
Holmes alleges that trial counsel advised him that if he went to trial “the chances were great that he would be convicted of each of the charges and would more than likely spend the rest of my life in prison”. Holmes alleges that such advice was incorrect as his sentence would be limited by his guidelines score sheet. It appears that Holmes’ maximum score sheet sentence was approximately 11 years. The record does not reflect a basis for an upward departure sentence.
We find Holmes’ allegations legally sufficient to warrant further review. State v. Leroux, 689 So. 2d 235, 236 (Fla.1996); Stott v. State, 701 So. 2d 917 (Fla. 4th DCA 1997); Choi v. State, 692 So. 2d 973 (Fla. 2d DCA 1997). We have reviewed the transcript of the plea colloquy and note that it does not refute Holmes’ allegations; rather, it could have reinforced Holmes’ belief that he could spend the rest of his life in prison if convicted after a trial. After the court reviewed Holmes’s score sheet and Holmes declined a “last call for trial”, the court commented “This is a life felony, mandatory minimum three years of first degree punishable by life, I’d be afraid to roll the dice in front of the jury .. ,”.1
We reverse that portion of the trial court’s order directed at the issue set forth above and remand for the trial court to either attach those portions of the record that conclusively demonstrate that the appellant is entitled to no relief, or, otherwise, to conduct an evidentiary hearing.
Affirmed in part, reversed in part, and remanded.
POLEN, STEVENSON and SHAHOOD, JJ., concur. . We note that Holmes' guideline sentence was approximately eleven years with regard to the home invasion charge. Appellant was charged with five different counts, but pled only to home invasion with a firearm. The state nolle pressed the remaining counts. The record does not reveal what appellant's guideline sentence would have been had he been convicted as charged on each count.
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Kemner v. State, 770 So. 2d 276 (Fla. 4th DCA 2000)…ent with the claim so as to ‘conclusively’ rebut it”). We have considered Jones v. State, 680 So. 2d 585 (Fla. 4th DCA 1996), on which the state relies, and find it distinguishable. This case more closely resembles the situations in Holmes v. State, 725 So. 2d 1228 (Fla. 4th DCA 1999), and Stott v. State, 701 So. 2d 917 (Fla. 4th DCA 1997), in which this court found that the information provided during the plea colloquy did not conclusively rebut counsel’s alleged misad-vice about the sentence that could be im…
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Ruiz v. State, 763 So. 2d 1154 (Fla. 4th DCA 2000)…negotiated sentence being within the guidelines range, even if counsel did misinform Ruiz, the error was harmless. If that were the end of the matter, we would be required to reverse and remand for an evidentiary hearing. See, e.g., Holmes v. State, 725 So. 2d 1228 (Fla. 4th DCA 1999). However, on appeal, the state correctly pointed out that Ruiz was not eligible for a guidelines sentence. If he had gone to trial and had been convicted, he would have faced a mandatory minimum sentence of fifteen years under…
Authorities Cited
- State v. Leroux, 689 So. 2d 235 (Fla. 1996)
- Choi v. State, 692 So. 2d 973 (Fla. 2d DCA 1997)
- Walker v. State, 701 So. 2d 917 (Fla. 4th DCA 1997)