TIMOTHY J. REGAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Timothy Regan challenged his guilty pleas under Florida Rule of Criminal Procedure 3.850, claiming his court-appointed counsel ineffectively advised him that his sentences would run concurrently rather than consecutively. The appellate court reversed the trial court's denial of relief, holding that counsel's misadvice about sentence structure raises a cognizable claim for ineffective assistance that is not refuted by the bare statements in the written plea agreement.
A defendant's allegation that counsel misadvised regarding sentence concurrency versus consecutivity states a prima facie case for relief under Rule 3.850 if the defendant also alleges he would not have entered the plea but for counsel's advice. General statements in a plea agreement that no promises have been made do not conclusively refute a specific allegation of misadvice about sentence structure.
[1] A claim that defense counsel's mistaken advice regarding concurrent versus consecutive sentences induced a guilty plea is cognizable under Florida Rule of Criminal Proced…
[2] An allegation that trial counsel erroneously led a defendant to believe that separate sentences would run concurrently, rather than consecutively, states a prima facie ca…
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Join FLexlaw to unlock all legal intelligence“A claim that defense counsel's mistaken advice that separate sentences would run concurrently instead of consecutively induced a defendant to plead guilty is cognizable under rule 3.850.”
Establishes the core holding that counsel's misadvice about sentence concurrency is a valid basis for post-conviction relief.
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Join FLexlaw to unlock all legal intelligenceTimothy Regan entered guilty pleas after receiving advice from court-appointed defense counsel that sentences for new offenses would run concurrently …
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PER CURIAM.
Invoking Florida Rule of Criminal Procedure 3.850, Timothy Regan alleges that court-appointed defense counsel was ineffective and that his guilty pleas were involuntary because defense counsel misled him, advising him that sentences for new offenses would run concurrently with any sentence imposed for prior offenses for which he had been on control release. The trial court denied relief. We reverse and remand with directions that the trial court identify and attach to the order on remand additional portions of the record conclusively refuting Mr. Regan’s claim or hold an evidentiary hearing.
A claim that defense counsel’s mistaken advice that separate sentences would run concurrently instead of consecutively induced a defendant to plead guilty is cognizable under rule 3.850. See Smith v. State, 718 So. 2d 223 (Fla. 1st DCA 1998); Hightower v. State, 650 So. 2d 1086, 1087 (Fla. 1st DCA 1995) (“An allegation that trial counsel or the trial court erroneously led the defendant to believe that he would serve two separate sentences concurrently rather than consecutively, states a prima facie case for relief under rule 3.850.”); McCoy v. State, 598 So. 2d 169, 170 (Fla. 1st DCA 1992) (“A defendant’s allegation that his attorney misrepresented the consequences of a plea constitutes a facially sufficient ineffective assistance of counsel claim, if the defendant also alleges that the guilty plea would not have been entered but for his attorney’s advice.”).
Mr. Regan’s motion alleges that he would not have entered the pleas but for defense counsel’s erroneous advice.
The trial court did not attach anything that refutes Mr. Regan’s allegations. The plea colloquies established little more than that Mr. Regan understood the written plea agreement. Although the written plea agreement recites that Mr. Regan was satisfied with the performance of defense counsel when he signed the agreement, the motion alleges that he was not then aware his sentences would ran consecutively. Cf. Alford v. State, 704 So. 2d 560 (Fla. 1st DCA 1997). Nothing in the record refutes Mr. Regan’s allegation that, based on his counsel’s advice, he had a mistaken belief that all of his sentences would ran concurrently. See Smith, 718 So. 2d at 225; Gessner v. State, 691 So. 2d 48, 49 (Fla. 1st DCA 1997); Jackson v. State, 442 So. 2d 1070, 1070 (Fla. 3d DCA 1983).
The statement in the written plea agreement that “no threats or promises have been made to cause [Mr. Regan] to enter this plea,” does not conclusively refute his claim that his attorney misadvised him that his sentences would ran concurrently rather than consecutively. See Davis v. State, 697 So. 2d 957 (Fla. 2d DCA 1997).
Shortly after the issuance of Hoch [ v. State, 679 So. 2d 847 (Fla. 2d DCA 1996) ], the Florida Supreme Court resolved a conflict between districts by holding that a general question about promises or inducements that does not specifically address the amount of time the defendant has been told he will serve does not conclusively refute a claim of ineffectiveness of counsel and defeat a claim that the plea was involuntary and thus subject to vacation. See State v. Leroux, 689 So. 2d 235 (Fla. 199).
Leroux, as did Hoch, involved allegations that counsel made representations concerning the portion of the sentence that the client should expect to actually serve. Davis’s claim does not involve prospects of gain time or early release, but instead is grounded on misadvice that the sentence accepted would ran concurrently with another sentence. We believe the principles of Leroux and Hoch should apply equally under these facts; both involve alleged misrepresentations about the amount of time a client will actually serve on a particular sentence that is the subject of a plea offer. Davis, 697 So. 2d at 959; see also Middleton v. State, 603 So. 2d 46, 47-48 (Fla. 1st DCA 1992).
Nothing else of record refutes the claim that Mr. Regan entered his plea because he relied on defense counsel’s erroneous advice that all of his sentences would ran concurrently. We therefore remand for the trial court to attach additional portions of the record conclusively refuting Mr. Regan’s claim or to hold an evidentiary hearing.
ERVIN, BOOTH, and BENTON, JJ., CONCUR.
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Callvester Smith v. State, 807 So. 2d 733 (Fla. 3d DCA 2002)…nsecutive to his violation of conditional release, the State correctly concedes that this case must be remanded back to the trial court for an evidentiary hearing on this issue. See Carter v. State, 752 So. 2d 725 (Fla. 3d DCA 2000); Regan v. State, 730 So. 2d 828 (Fla. 1st DCA 1999). Accordingly, we remand this cause for an evidentiary determination of whether the appellant was advised by his counsel that his sentence, imposed pursuant to his plea, would run concurrent with his conditional release violation.…
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Mason v. State, 742 So. 2d 370 (Fla. 1st DCA 1999)…ilty and would have insisted on going to trial.” Id. at 59, 106 S.Ct. 366 (footnote omitted). It is not necessary to allege, in addition, that a defense existed to the charge. This court has consistently adhered to such a test. E.g., Regan v. State, 730 So. 2d 828 (Fla. 1st DCA 1999); Richardson v. State, 677 So. 2d 43 (Fla. 1st DCA 1996); McCoy v. State, 598 So. 2d 169 (Fla. 1st DCA 1992). Appellant alleged that, but for the erroneous information received from his attorney, he would have proceeded to trial o…
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McALLISTER v. State, 840 So. 2d 1163 (Fla. 5th DCA 2003)…porting the determination that the defendant’s motion was previously denied or otherwise refuting the defendant’s claim. The denial of a rule 3.800(a) motion as successive must include an attachment of the prior motion and order. See Lewis v. State, 730 So. 2d 828 (Fla. 5th DCA 1999). On the other hand, the defendant’s motion is facially insufficient because it fails to allege that the record on its face demonstrates an entitlement to relief. See State v. Mancino, 714 So. 2d 429 (Fla.1998); Toomajan v. State,…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Leroux, 689 So. 2d 235 (Fla. 1996)
- McCOY v. State, 598 So. 2d 169 (Fla. 1st DCA 1992)
- Hoch v. State, 679 So. 2d 847 (Fla. 2d DCA 1996)
- Davis v. State, 697 So. 2d 957 (Fla. 2d DCA 1997)
- Leonard v. State, 603 So. 2d 46 (Fla. 4th DCA 1992)
- Hightower v. State, 650 So. 2d 1086 (Fla. 1st DCA 1995)
- Jackson v. State, 442 So. 2d 1070 (Fla. 3d DCA 1983)
- Smith v. State, 718 So. 2d 223 (Fla. 1st DCA 1998)
- Jackson v. State, 691 So. 2d 48 (Fla. 2d DCA 1997)
- Alford v. State, 704 So. 2d 560 (Fla. 1st DCA 1997)