CLARENCE BRAKEALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in denying postconviction relief without an evidentiary hearing because the plea form disclaimer did not conclusively refute the defendant's claim.
[1] A defendant's postconviction relief motion alleging ineffective assistance of counsel based on misrepresentations about sentence length is facially sufficient when the al…
[2] A written plea form's disclaimer regarding the Department of Corrections' sole responsibility for awarding early release does not conclusively refute a defendant's claim…
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Join FLexlaw to unlock all legal intelligenceBrakeall pleaded guilty to DUI manslaughter based on his attorney's assurance and the trial court's statement that he would serve 'forty something' mo…
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PER CURIAM.
Clarence Brakeall appeals the denial of his motion for postconviction relief brought pursuant to Florida Rule of Criminal Procedure 3.850. Brakeall pleaded guilty to DUI manslaughter in exchange for a negotiated plea of eight years in prison. He alleges that his attorney told him that he would serve only forty-seven months of that sentence and that the trial court confirmed this at his plea hearing by stating that he would serve “forty something”. months. A copy of the transcript of the plea hearing verifies that the judge made this statement. According to Brakeall, however, when he arrived at the Department of Corrections, he learned that he would in fact serve in excess of sixty months. Brakeall further asserts that he would have proceeded to trial had he known the true length of the sentence he would serve as a result of the plea agreement.
Biakeall’s motion is facially sufficient. See, e.g., Carmichael v. State, 631 So. 2d 346(Fla. 2d DCA 1994). The trial court, however, found that the claim was conclusively refuted by the record. The trial court relied on the transcript and on a written plea form executed by Brakeall. As noted, the transcript fails to refute Brakeall’s allegation and, in fact, supports it. The plea form, on the other hand, includes the following disclaimer:
I understand that the Department of Corrections is solely responsible for awarding gain time or any type of early release. I understand that any information I have received concerning gain time or early release is strictly an estimate and is not part of any plea discussion or agreement.
Nonetheless, in light of the sentencing court’s statement during the plea hearing that Brakeall would only serve “forty something” months, we cannot agree that' the notice on the plea form conclusively refutes Brakeall’s claim that he entered his plea based on the understanding that he would only, serve forty-seven months in prison. Therefore, we reverse and remand for an evidentiary hearing.
Reversed and remanded.
FULMER, A.C.J., and GREEN and DAVIS, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Armstrong v. State, 793 So. 2d 48 (Fla. 2d DCA 2001)…advice regarding gain time. This claim was facially sufficient, see, e.g., Hoch v. State, 679 So. 2d 847 (Fla. 2d DCA 1996), but it was not conclusively refuted by the record, see Jones v. State, 774 So. 2d 811 (Fla. 2d DCA 2000); Brakeall v. State, 742 So. 2d 377 (Fla. 2d DCA 1999). Accordingly, we reverse the denial of relief on this claim only and remand for further proceedings. If the claim cannot be conclusively refuted by the record, an evidentiary hearing will be required. In all other respects, we aff…
Authorities Cited
- Carmichael v. State, 631 So. 2d 346 (Fla. 2d DCA 1994)