HENRY RICHARDSON, PETITIONER,
v.
THE STATE OF FLORIDA, RESPONDENT
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Henry Richardson petitioned for a writ of habeas corpus claiming his attorney failed to pursue an appeal as requested and that his plea was involuntary due to lack of notice of enhancement. The court denied the habeas petition without prejudice but remanded the ineffective assistance claim for an evidentiary hearing due to apparent contradictions in the plea colloquy regarding appeal rights.
The court denied the habeas petition without prejudice but remanded the ineffective assistance claim for an evidentiary hearing because the apparent contradiction in the plea colloquy regarding appeal rights may have confused Richardson. The claim regarding lack of notice of enhancement was rejected as cognizable only through a rule 3.850 petition, which Richardson may still timely file.
[1] A writ of habeas corpus may be denied without prejudice to allow a petitioner to file a Rule 3.850 petition for post-conviction relief.
[2] An apparent contradiction in a trial court's statements regarding a defendant's right to appeal may warrant an evidentiary hearing on an ineffective assistance of counsel…
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 intelligence“the transcript of the plea colloquy records the judge telling Richardson that he waived his right to an appeal by taking the plea, Transcript at 128, and a few sentences later that 'you [Richardson] have thirty days from today to contest the amount of today's sentence.' Transcript at 129. This apparent contradiction may have confused the defendant regarding his ability to pursue an appeal.”
Establishes the core issue warranting remand—the contradictory statements about appeal rights in the plea colloquy
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRichardson entered a guilty plea. At the plea hearing, the judge told Richardson he waived his right to appeal by taking the plea, but then stated he …
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FLETCHER, Judge.
Henry Richardson petitions this Court for a writ of habeas corpus. For the reasons explained below, we deny the writ and remand this case to the trial court to hold an evidentiary hearing on Richardson’s ineffective assistance of counsel claim. Richardson claims his attorney-failed to pursue an appeal for him as requested. There is nothing in the record to contradict this, and there is also no record of an express reservation of appeal in the transcript.
However, the transcript of the plea colloquy records the judge telling Richardson that he waived his right to an appeal by taking the plea, Transcript at 128, and a few sentences later that “you [Richardson] have thirty days from today to contest the amount of today’s sentence.” Transcript at 129. This apparent contradiction may have confused the defendant regarding his ability to pursue an appeal. The State has acknowledged this potential confusion. We follow its recommendation and remand to the lower court for an evidentiary hearing on this matter. Richardson’s remaining claims are without merit as they are conclusively refuted by the record. Richardson’s claim that he never received written notice of the State’s intent to habitualize and thus his plea was involuntary is belied by the record which shows that the State indeed filed a written notice of enhancement.
Furthermore, this is not an issue cognizable on habeas but rather via rule 3.850 petition, and Richardson is still within (barely) the window for filing such a petition for relief.
We deny the habeas petition without prejudice for defendant to submit a rule 3.850 petition if he wishes to pursue withdrawal of his plea, remand the first issue to the lower court for an evidentiary hearing, and affirm all remaining points.
Affirmed in part, remanded in part.