RICHARD KEMNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the trial court erred in denying the motion to vacate pleas without conclusively refuting the defendant's claim of ineffective assistance of counsel based on misadvice about potential sentences.
[1] A trial court's advice during a plea colloquy regarding potential sentences under a plea agreement or open plea does not conclusively refute an allegation that counsel pr…
[2] A plea colloquy must be so clear or so inconsistent with a defendant's claim of misadvice as to conclusively rebut it.
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 intelligenceRichard Kemner appealed the denial of his postconviction motion to vacate pleas, alleging his counsel misadvised him that he would receive a life sent…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Plea Colloquy cases and more on FLexlaw
PER CURIAM.
Richard Kemner appeals the denial of his postconviction motion to vacate his pleas to two violations of probation and two new criminal charges. One of his allegations was that his pleas in these cases were induced by his counsel’s misad-vice that he would receive a life sentence if he went to trial and was convicted.
The order on appeal attached the transcript of the change of plea hearing. At that hearing, the trial court advised Kem-ner of the sentence he would receive under the plea agreement offered by the state and the guidelines range he would be subject to if he entered an open plea to the court. The trial court adopted the state’s position that this corrected the attorney’s misstatement, or at least required Kemner to ask about counsel’s contrary advice.
We disagree. The trial court’s advice was limited to the sentences Kemner could receive if he entered a plea. It was not necessarily inconsistent with the advice he says he received about the sentence he faced if he went to trial. The transcript therefore did not conclusively refute this allegation. See State v. Leroux, 689 So. 2d 235, 237 (Fla.1996)(the plea colloquy must be “so clear or so inconsistent 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 imposed after trial.
We reverse and remand for attachment of additional portions of the record that conclusively demonstrate that the appellant is entitled to no relief or for an evidentiary hearing. Since Kemner’s re- maiming claims were properly denied, the proceedings on remand shall be limited to this ground only.
REVERSED and REMANDED.
WARNER, C.J., DELL and KLEIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Snodgrass v. State, 837 So. 2d 507 (Fla. 4th DCA 2003)…erms of his plea agreement and was informed of the consequences of his plea; the appellant was nonetheless entitled to a hearing on the merits of his motion to withdraw based on allegations of trial counsel misadvice and coercion.); Kemner v. State, 770 So. 2d 276 (Fla. 4th DCA 2000) (Transcript of hearing did not conclusively rebut appellant’s allegation that his plea was induced by his counsel’s misadvice that he would receive a life sentence if he went to trial and was convicted.); Holmes v. State, 726 So.…
-
Morrison v. State, 842 So. 2d 1071 (Fla. 4th DCA 2003)…ntence. Morrison raised three legally sufficient issues in her post-conviction motion: (1) the plea was induced by counsel’s incorrect advice regarding the sentence the court would impose if the state’s plea offer was refused, see Kemner v. State, 770 So. 2d 276 (Fla. 4th DCA 2000); but see Bond v. State, 695 So. 2d 778 (Fla. 1st DCA 1997); (2) the court failed to credit her with the incareerative portion of her probationary split sentence; see Henderson v. State, 720 So. 2d 1121 (Fla. 4th DCA 1998); Cozza…
-
Smith v. State, 968 So. 2d 675 (Fla. 4th DCA 2007)…e sentenced on revocation of probation; it merely recited the terms to which the parties had agreed, as stated in the plea agreement. Thus, the transcripts do not conclusively refute Defendant’s first two grounds for relief. Compare Kemner v. State, 770 So. 2d 276 (Fla. 4th DCA 2000) (distinguishing Jones and reversing summary denial of motion in which defendant alleged he entered his plea based on counsel’s misadvice that if he were convicted after trial, he would receive a life sentence, and the judge had a…
Previewing 3 of 4 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)
- Jones v. State, 680 So. 2d 585 (Fla. 4th DCA 1996)
- Walker v. State, 701 So. 2d 917 (Fla. 4th DCA 1997)
- Lanard Holmes v. State, 725 So. 2d 1228 (Fla. 4th DCA 1999)