EVAN HARRISON GUILFORD,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Guilford appealed the summary denial of his postconviction relief motion, raising claims of ineffective assistance of counsel and involuntary plea. The First District Court of Appeal reversed and remanded on those two claims, finding them facially sufficient, while affirming the denial of two other non-cognizable issues.
The court held that Guilford's ineffective assistance of counsel claim was facially sufficient because he alleged both deficient performance (failure to investigate) and resulting prejudice (conviction of felony rather than misdemeanor). The court also held that the trial court erred in summarily denying the involuntary plea claim without addressing it. The case was reversed and remanded for either attachment of record portions conclusively refuting the claims or an evidentiary hearing.
[1] A claim of ineffective assistance of counsel is facially sufficient if it alleges deficient performance and prejudice resulting from that deficiency.
[2] A plea may be deemed involuntary if the defendant was improperly charged and convicted of a felony offense when the facts would have supported only a misdemeanor charge.
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Join FLexlaw to unlock all legal intelligence“Appellant's claim of ineffective assistance of counsel is facially sufficient. First, he alleged deficient performance on the part of trial counsel by failing to investigate the charge to determine whether it was improper. Second, he alleged he was prejudiced by this deficient performance, because he was convicted of a felony rather than a misdemeanor.”
Establishes the court's standard for evaluating ineffective assistance claims and finding them facially sufficient for reversal
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Join FLexlaw to unlock all legal intelligenceGuilford was charged with driving while his license was suspended or revoked under section 322.34(1), Florida Statutes. He pleaded guilty and was init…
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PER CURIAM.
Appellant raised four issues on appeal from the summary denial of his motion for postconviction relief. We affirm the first two issues without discussion as they are not cognizable in postconviction proceedings, but reverse and remand' on the ineffective assistance of counsel and involuntary plea claims.
Appellant was charged with driving while his license was suspended or revoked in violation of section 322.34(1), Florida Statutes (1995). Following a pleá, he was sentenced to probation,' which was subsequently revoked, and he was sentenced to five years in prison.
In his motion for postconviction relief, appellant alleged he was. denied effective assistance of counsel, because counsel failed to investigate the charge and, as a consequence, he entered a plea to a felony offense notwithstanding that the most he could 'have been accused of was a misdemeanor. He explained that he had been charged and convicted under section 322.34(1), but that because he had been previously classified as a habitual traffic offender under section 322.264, Florida Statutes, he was specifically excepted from prosecution under section 322.34(1). See State v. Harvey, 693 So. 2d 1009 (Fla. 4th DCA 1997). Instead, he should have been charged under section 322.34(2). Appellant further alleged that if he had been properly accused under section 322.34(2), he could not have been convicted of a felony, because he did not have the requisite number of prior convictions in that one ,of his prior charges had resulted in adjudication being withheld and he had successfully completed the probationary term imposed therefor. See State v. Gloster, 703 So. 2d 1174 (Fla. 1st DCA 1997), review granted, 717 So. 2d 531 (Fla.1998). Under the same reasoning, appellant asserted his plea was involuntary.
Appellant’s claim of ineffective assistance of counsel is facially sufficient. First, he alleged deficient performance on the part of trial counsel by failing to investigate the charge to determine whether it was improper. Second, he alleged he was prejudiced by this deficient performance, because he was convicted of a felony rather than a misdemeanor. See Gloster. Under these circumstances, the trial court erred by summarily denying the motion.1
The trial court also erred by summarily denying the motion without addressing appellant’s claim of involuntary plea.
The case is therefore reversed and remanded with directions to attach those portions of the record which conclusively refute appellant’s claims, or to hold an evidentiary hearing.
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.
ERVIN, WOLF and WEBSTER, JJ„ CONCUR. . The trial court denied the motion on the ground of lack of prejudice based on Raulerson v. State, 699 So. 2d 339 (Fla. 5th DCA 1997), review granted, 709 So. 2d 537 (Fla.1998). This court is, of course, bound to follow Gloster.
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Dwaine Woodson v. State, 864 So. 2d 512 (Fla. 5th DCA 2004)…these conditions. .See Palma v. State, 830 So. 2d 201 (Fla. 5th DCA 2002); O’Neal v. State, 801 So. 2d 280 (Fla. 4th DCA 2001); Butler v. State, 775 So. 2d 320 (Fla. 2d DCA 2000); Jones v. State, 744 So. 2d 537 (Fla. 2d DCA 1999); Gamble v. State, 737 So. 2d 1160 (Fla. 1st DCA 1999); Mitchell v. State, 717 So. 2d 609 (Fla. 4th DCA 1998); Edgerton v. State, 703 So. 2d 1249 (Fla. 5th DCA 1998); Salzano v. State, 664 So. 2d 23 (Fla. 2d DCA 1995); Melecio v. State, 662 So. 2d 408 (Fla. 1st DCA 1995); Gibbs v. St…
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Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Gloster, 703 So. 2d 1174 (Fla. 1st DCA 1997)
- State v. Oberlin D. Harvey, 693 So. 2d 1009 (Fla. 4th DCA 1997)
- Raulerson v. State, 699 So. 2d 339 (Fla. 5th DCA 1997)