TAVARES DEREL GIBSON, APPELLANT,

v.

STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2001-09-05

No. 4D01-1728

FARMER, GROSS and HAZOURI, JJ., concur.

792 So. 2d 1278 Florida District Court of Appeal, Fourth District (2001) Positive Treatment

Cited by 15 cases

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Holding

The court held that the trial court erred in summarily denying the motion for post-conviction relief without attaching sufficient record documentation to refute the claim.

Facts & Procedural History

Appellant claimed ineffective assistance of counsel, alleging his attorney misadvised him about the sentence length for his guilty plea. The trial cou…

The full statement of facts, procedural history, and disposition for this case are member content.

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Topics

Involuntary Plea Plea Colloquy Florida Rule Of Criminal Procedure 3.850 Postconviction Relief

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Opinion of the Court

PER CURIAM.

Appellant, Tavares Derel Gibson, appeals from the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.

Appellant set forth a facially sufficient claim for ineffective assistance of trial counsel resulting in an involuntary plea. He alleged counsel misadvised him concerning the length of the sentence which would be served should he enter a guilty plea to the charge of attempted robbery with a firearm. The trial court imposed a sentence far greater than the term appellant’s counsel allegedly told him to expect. Appellant asserted that had he been informed correctly, he would not have entered the guilty plea.

The trial court summarily denied this motion for post-conviction relief based on a plea agreement signed by appellant, which states that no one, including his lawyer, had made any promises to him concerning his eligibility for early release or the amount of time that he would serve under the sentence imposed. The plea agreement does not refute appellant’s claim that counsel failed to advise him that he would have to serve 85% of his actual sentence in prison. Additionally, the trial court failed to attach the transcript of the plea colloquy as further record evidence on appellant’s claim of ineffective assistance of counsel resulting in an involuntary plea.

We therefore reverse and remand for further proceedings. On remand, the trial court may again summarily deny the claim, but only if it attaches record documentation conclusively refuting appellant’s claim. Otherwise, an evidentiary hearing will be necessary.

REVERSED AND REMANDED.

FARMER, GROSS and HAZOURI, JJ., concur.

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Fleitas v. State, 3 So. 3d 351 (Fla. 3d DCA 2008)

…g., Griffith v. State, 762 So. 2d 1022, 1023 (Fla. 3d DCA 2000) (“The prior consistent statement was necessary to rehabilitate [the witness] after his impeachment by the defense and was a recognized exception to the hearsay rule.”); Monday v. State, 792 So. 2d 1278, 1281 (Fla. 1st DCA 2001) (a prior consistent statement used to rehabilitate a witness who has been impeached may be admissible even in situations where the witness does not claim an exception to the hearsay rule). Because the record establishes tha…
Pitts v. State, 227 So. 3d 674 (Fla. 1st DCA 2017)

….” (citation omitted)); § 90.614(2), Fla. Stat. (2015) (providing that extrinsic evidence óf a pri- or inconsistent statement is admissible after a witness “denies making or does hot distinctly admit making” the statement); see also Monday v. State, 792 So. 2d 1278, 1281 (Fla. 1st DCA 2001) (noting that a [*679] statement. offered to impeach a witness is not hearsay, because it is not offered to prove the truth of the matter asserted). AFFIRMED. B.L. THOMAS, C.J., and OSTERHAUS, J., CONCUR. . Pitts told off…
J.B.J. v. State, 17 So. 3d 312 (Fla. 1st DCA 2009)

…or consistent statement is not admissible under section 90.801(2)(b) “merely because the opposing lawyer has attacked the credibility of the witness or challenged the truthfulness of the statement given by the witness at trial.” See Monday v. State, 792 So. 2d 1278, 1280 (Fla. 1st DCA 2001) (citing Jenkins, 547 So. 2d at 1020-21). In the instant case, the first condition for admitting prior consistent statements under section 90.801(2) was met because J.E.A. testified at trial and Appellant was given the oppo…

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