JOHN CURTIS IVEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Ivey appeals the denial of his postconviction motion challenging the effectiveness of his trial counsel. The appellate court affirms that portion addressing resentencing but reverses the denial of Ivey's claim that counsel promised he would receive a term of years rather than a life sentence when he entered his plea.
The trial court properly denied the resentencing portion of Ivey's claim, but improperly denied his claim challenging counsel's conduct regarding the initial plea. A guilty plea is involuntary if induced by counsel's unfulfilled promises, and such claims based on off-record conversations between counsel and client must be raised by collateral motion, not direct appeal. The case is remanded for an evidentiary hearing on Ivey's plea-related claim unless the record affirmatively refutes it.
[1] A criminal defendant's guilty plea is involuntary if induced by unfulfilled promises made by defense counsel.
[2] Allegations of ineffective assistance of counsel not apparent from the record must be raised by collateral motion, not direct appeal.
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Join FLexlaw to unlock all legal intelligence“A criminal defendant's guilty plea is involuntary if it is induced by defense counsel's promises which are not fulfilled.”
Establishes the standard for challenging a plea based on counsel's unfulfilled representations
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Join FLexlaw to unlock all legal intelligenceIvey entered a guilty plea based on assurances from his trial counsel that he would receive a sentence allowing eventual release. Instead, the trial c…
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PER CURIAM.
John Ivey challenges the trial court’s denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm that portion of the order which addresses the allegation of trial counsel’s ineffectiveness during resentencing following this court’s mandate in Ivey v. State, 633 So. 2d 530 (Fla. 2d DCA 1994). We reverse the denial of Ivey’s claim attacking counsel at the time he initially entered his plea to the crimes for which he stands convicted.
Ivey asserted in his motion that his trial counsel assured him that by entering a plea to the charges, the trial court would sentence him to a term of years for which he would eventually be eligible for release. The life sentence which followed the entry of the plea, and which he still carries after being resentenced, does not comport with counsel’s alleged promise. The trial court summarily denied this claim, concluding that it was procedurally barred because Ivey had raised the question, or variations of it, on direct appeal. In support of this proposition, the order of denial references, by attachment, a statement of judicial acts to be reviewed filed by counsel.
This document fails to refute Ivey’s claim for a variety of reasons. First, a trial attorney’s recitation of judicial acts to be reviewed frequently bears no resemblance to the questions actually raised on appeal. Second, the only issue identified in this document is stated simply as “re-sentencing,” and does not hint at any accusations of trial counsel’s failings. Third, allegations of ineffectiveness of counsel not apparent from the record must be raised by collateral motion and not on plenary review, and claims based upon off-record conversations between counsel and client, such as Ivey’s, are especially unsuitable for review on direct appeal. See Mitchell v. State, 654 So. 2d 950 (Fla. 2d DCA 1995). And, fourth, this document references an appeal from resentencing taken several years after the plea in question was entered, and does not pertain to the judgment under attack.
A criminal defendant’s guilty plea is involuntary if it is induced by defense counsel’s promises which are not fulfilled. See Ricardo v. State, 647 So. 2d 287 (Fla. 2d DCA 1994). Should Ivey’s sworn claim be sustained after an evidentiary hearing, he will be entitled to withdraw the plea. On remand, the trial court may again deny the motion without such a hearing if record attachments affirmatively refute Ivey’s allegation.
Affirmed in part, reversed in part, and remanded.
CAMPBELL, A.C.J., and THREADGILL and CASANUEVA, JJ„ Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Ricardo v. State, 647 So. 2d 287 (Fla. 2d DCA 1994)
- Ivey v. State, 633 So. 2d 530 (Fla. 2d DCA 1994)
- Faye Anner Mitchell v. State, 654 So. 2d 950 (Fla. 2d DCA 1995)