GERRARD D. JONES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the motion for post-conviction relief was facially insufficient, but affirmed without prejudice to refile.
Defendant appealed the denial of his motion for post-conviction relief, alleging his attorney gave him affirmative misadvice regarding a prior plea. H…
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PARKER, Acting Chief Judge.
Gerrard D. Jones appeals the trial court order which denied his motion for postcon-viction relief pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without prejudice to Jones’s right to file a facially sufficient motion within thirty days of the date this court’s mandate, issues.
Jones filed a motion which alleged that he is entitled to relief under Wood v. State, 750 So. 2d 592 (Fla.1999), because his attorney gave him affirmative misadvice during a plea hearing in this 1991 case. Jones alleged that his attorney told him that his plea in this case would be “history” and could never be used against Jones again with respect to a subsequent conviction. Jones also alleged that he would not have entered the plea except for this misadvice; instead, he would have gone to trial.
Because Jones alleged active misadvice by his attorney, we decline to stay this case or to certify it to the supreme court as we did in Bismark v. State, 796 So. 2d 584 (Fla. 2d DCA 2001).1 However, because Jones’s motion is facially insufficient for this court to determine the facts involved in the original plea and its application to any subsequent enhanced sentences, we affirm this case without prejudice to Jones’s right to file a facially sufficient motion within thirty days of the date this court’s mandate issues.
Affirmed.
SALCINES and STRINGER, JJ, Concur. . In Bismark v. State, 796 So. 2d 584 (Fla. 2d DCA 2001), there was no allegation by the defendant of active misadvice by his attorney. The defendant in that case alleged that his attorney failed to advise him that his 1995 conviction could be used to enhance any sentence he received on a subsequent conviction and further alleged he would not have pleaded but would have proceeded to trial had he been advised of the possible future sentence-enhancing consequences of his plea.
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LaMarr Love v. State, 814 So. 2d 475 (Fla. 4th DCA 2002)…the denial of relief based on this ground. See Stretcher v. State, 803 So. 2d 813 (Fla. 4th DCA 2001). However, as reflected in Smith, this court treats the [*478] allegation of affirmative misadvice of counsel differently. See also Jones v. State, 804 So. 2d 493 (Fla. 2d DCA 2001) (declining to stay case or certify it to supreme court as with Bismark, where postconviction movant alleged active misadvice by counsel). If the record does not refute Appellant’s allegation that he entered his plea involuntarily…
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Kaynan Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., 88 So. 3d 269 (Fla. 1st DCA 2012)…e was indispensable to the maintenance of this claim. See Strazzulla v. Hendrick, 177 So. 2d 1 (Fla.1965); Pelican Real Estate & Dev. Co. v. Boone, Case 60 So. 3d 502 (Fla. 1st DCA Apr.21, 2011); Parker Family Trust I v. City of [*283] Jacksonville, 804 So. 2d 493 (Fla. 1st DCA 2001), review denied, 828 So. 2d 385 (Fla. 2002). Contrary to the majority view, the “law of the case” doctrine is not inapplicable because a new, previously unconsidered “issue” has now been presented. See Fla. Dep’t of Transp. v. Jul…
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Vill. OF N. Palm Beach v. S & H Foster's, Inc., 80 So. 3d 433 (Fla. 4th DCA 2012)…he declaratory relief which was granted. “[Questions of law actually decided on appeal must govern the case in the appellate court and in the lower tribunal in all subsequent stages of the proceeding.” Parker Family Trust I v. City of Jacksonville, 804 So. 2d 493, 497-98 (Fla. 1st DCA 2001) (quoting Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 102 (Fla.2001)). However, “[t]he affirmance of a temporary injunction on appeal determines only that a proper showing3 was made at the time the injunction was app…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wood v. State, 750 So. 2d 592 (Fla. 1999)
- Bismark v. State, 796 So. 2d 584 (Fla. 2d DCA 2001)