DERRICK L. ABERNATHY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the summary denial of Abernathy's Rule 3.850 postconviction motion challenging counsel's advice regarding habitual offender sentencing, finding the claim facially insufficient for failure to allege he would have rejected the plea had proper advice been given.
A postconviction claim that counsel misadvised regarding habitual offender sentencing is facially insufficient when the movant fails to allege he would have rejected the plea offer had proper advice been given.
[1] A postconviction claim of ineffective assistance of counsel based on misadvice regarding sentencing consequences is facially insufficient unless the movant alleges he wou…
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Join FLexlaw to unlock all legal intelligenceDerrick L. Abernathy appealed the summary denial of his Rule 3.850 postconviction motion claiming counsel misadvised him about habitual offender sente…
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PER CURIAM.
Derrick L. Abernathy appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We have carefully reviewed his motion and the trial court’s order denying it. We affirm.
Although we do not agree with all of the grounds given by the trial court for denying Abernathy’s claim that counsel misadvised him as to the possibility of habitual offender sentencing, we do agree that Abernathy’s claim is facially insufficient. See Davis v. State, 697 So. 2d 957, 958 (Fla. 2d DCA 1997) (noting that claimant is required to establish prejudice from alleged bad legal advice, and absent allegation that he or she would have rejected plea offer had proper advice been given, showing of prejudice is not made and claim may be denied as facially insufficient). Moreover, we disagree with the trial court’s conclusion that Abernathy failed to allege prejudice in his claim regarding the timeliness of the State’s notice of intent to seek habitualization. However, we conclude that the record attachments refute his claim because they demonstrate he was sentenced as a habitual offender over a month after the State filed its notice.
Affirmed.
PARKER, A.C.J., and BLUE and DAVIS, JJ., Concur.