DONALD GREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Donald Green appealed the summary denial of his postconviction relief motion alleging ineffective assistance of counsel regarding sentencing advice. The court reversed in part, finding that Green's claim regarding erroneous advice about concurrent sentencing credit was facially sufficient and not refuted by the record, requiring an evidentiary hearing on remand.
The court held that Green's ineffective assistance claim regarding misadvice about concurrent sentencing credit was facially sufficient and not refuted by the record, reversing the summary denial and remanding for an evidentiary hearing unless the claim is refuted by record evidence on remand.
[1] A defendant seeking to withdraw a plea must allege that but for counsel's alleged error, the defendant would not have pleaded guilty and would have insisted on going to t…
[2] A trial court's thorough plea colloquy, which advises a defendant of maximum possible sentences and that no one knows the ultimate sentence, can cure any prejudice from p…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Green alleged that counsel erroneously advised him that because his sentences were imposed concurrently, he would receive credit for time spent in prison on the 1989 charge against the sentences imposed on the new charges. This is, of course, incorrect as Green learned when he arrived at the Department of Corrections.”
Establishes the factual basis of the ineffective assistance claim regarding counsel's misadvice about concurrent sentencing credit.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn 1997, Green pleaded guilty to possession of cocaine and sale of cocaine, receiving a 22-month guidelines sentence on the former and a concurrent 15…
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PER CURIAM.
Donald Green appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In 1997, Green pleaded guilty to one count of possession of cocaine and one count of sale of cocaine. He received a guidelines sentence of twenty-two months’ prison on the former and a concurrent habitual offender sentence of fifteen years’ prison followed by fifteen years’ probation on the latter. At the same time, he also admitted to violating his probation on a 1989 sale of cocaine charge and was sentenced to a concurrent fifteen-year prison sentence with credit for the time he had previously spent in prison on that charge. Green has alleged that his plea was involuntary and his counsel ineffective in several regards.
We agree with the trial court’s conclusion that two of Green’s claims are refuted by the record and affirm the order as to those claims without comment.
We reverse as to Green’s third .claim, which we conclude is facially sufficient and is not refuted by the record.
Green alleged that counsel erroneously advised him that because his sentences were imposed concurrently, he would receive credit for time spent in prison on the 1989 charge against the sentences imposed on the new charges. This is, of course, incorrect as Green learned when he arrived at the Department of Corrections. Green further alleged that he would not have pleaded guilty if he had know this advice was incorrect. This claim is facially sufficient. See, e.g., Montgomery v. State, 615 So. 2d 226 (Fla. 5th DCA 1993) (holding that misadvice of counsel as to the length of a sentence is a basis for postconviction relief if not refuted by the record); Davis v. State, 697 So. 2d 957 (Fla. 2d DCA 1997) (holding that in order to establish prejudice based on misadvice regarding sentence length, defendant must allege generally that he would not have pleaded but for the bad advice).
Because it is not refuted by record attachments,1 we reverse and-remand. On remand the trial court may again summarily deny this claim only if it is refuted by record evidence. Otherwise, an evidentiary hearing must be held.
Affirmed in part, reversed in part, and remanded.
BLÜE, A.C.J., and GREEN and STRINGER, JJ., concur. . We note that Green’s claim is not refuted by anything contained in the transcipt of the plea colloquy provided to this court.
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Yurchis v. State, 799 So. 2d 1096 (Fla. 2d DCA 2001)…ERND, A.C.J., and STRINGER, J., Concur. . A defendant who claims that his plea is involuntary because he was provided incorrect information regarding his sentence must allege that he would not have pleaded but for the misadvice. See Green v. State, 777 So. 2d 433 (Fla. 2d DCA 2000); State v. Taylor, 738 So. 2d 988 (Fla. 2d DCA 1999).…
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Green v. State, 857 So. 2d 304 (Fla. 2d DCA 2003)…tconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without prejudice to Green’s right to file, within sixty days of this court’s mandate, a motion to withdraw his plea pursuant to rule 3.850. In Green v. State, 777 So. 2d 433 (Fla. 2d DCA 2000), this court reversed the trial court’s summary denial of Green’s rule 3.850 motion because his claim of ineffective assistance of counsel was facially sufficient and was not refuted by the record. Specifically, Green alleged that…
Authorities Cited
- Montgomery v. State, 615 So. 2d 226 (Fla. 5th DCA 1993)
- Davis v. State, 697 So. 2d 957 (Fla. 2d DCA 1997)