CALLVESTER SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Callvester Smith appeals the denial of his motion for post-conviction relief, alleging ineffective assistance of counsel based on a claim that his trial counsel misled him about whether his sentences would run concurrently with his violation of conditional release. The appellate court agrees that the record is silent on this critical sentencing matter and remands for an evidentiary hearing.
When the record of a plea hearing and sentencing order are silent as to whether sentences run concurrent or consecutive to a violation of conditional release, the case must be remanded to the trial court for an evidentiary hearing to determine whether the defendant was advised by counsel that his sentences would run concurrent with the conditional release violation.
[1] A defendant may be entitled to post-conviction relief for ineffective assistance of counsel if counsel affirmatively misled the defendant regarding the concurrency of sen…
[2] When a written sentencing order and plea hearing record are silent on whether sentences run concurrent or consecutive to a violation of conditional release, the Departmen…
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Join FLexlaw to unlock all legal intelligence“Where, as here, the record of the plea hearing and the sentencing order are silent as to whether the appellant's sentences are to run concurrent or consecutive to his violation of conditional release, the State correctly concedes that this case must be remanded back to the trial court for an evidentiary hearing on this issue.”
Establishes the legal standard that silence in sentencing records on concurrent/consecutive running requires remand for evidentiary hearing
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Join FLexlaw to unlock all legal intelligenceSmith entered a plea to two cases with the understanding that he would serve the sentences concurrently with his conditional release violation. The wr…
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PER CURIAM.
CONFESSION OF ERROR
Appellant, Callvester Smith, appeals the denial of his Motion for Post-Conviction Relief pursuant to Florida Rules of Criminal Procedure 3.850. Appellant alleges that he received ineffective assistance of trial counsel where counsel affirmatively misled him as to whether his sentences would run concurrent to his violation of conditional release. He contends that he is entitled to post conviction relief because he entered a plea to two cases upon the understanding that he would serve the sentences to both concurrently with his conditional release violation. Although the written sentencing order of the plea indicates that the sentences for the two cases were to run concurrently, there was no mention at the plea hearing or in the written sentencing documents about the appellant’s violation of conditional release. As a result of the trial court’s silence on the issue of whether the appellant’s sentences were to run concurrent or consecutive to his violation of conditional release, the Department of Corrections deemed the sentences to run consecutive pursuant to section 921.16(1), Fla. Stat. (1995). See also Brace v. State, 679 So. 2d 45 (Fla. 3d-DCA 1996).
Where, as here, the record of the plea hearing and the sentencing order are silent as to whether the appellant’s sentences are to run concurrent or consecutive to his violation of conditional release, the State correctly concedes that this case must be remanded back to the trial court for an evidentiary hearing on this issue. See Carter v. State, 752 So. 2d 725 (Fla. 3d DCA 2000); Regan v. State, 730 So. 2d 828 (Fla. 1st DCA 1999). Accordingly, we remand this cause for an evidentiary determination of whether the appellant was advised by his counsel that his sentence, imposed pursuant to his plea, would run concurrent with his conditional release violation.
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King v. State, 900 So. 2d 737 (Fla. 1st DCA 2005)…PER CURIAM. DENIED. See Munn v. Florida Parole Commission, 807 So. 2d 733 (Fla. 1st DCA 2002). ERVIN, BROWNING and LEWIS, JJ., concur.…
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Brooks v. State, 968 So. 2d 57 (Fla. 1st DCA 2007)…PER CURIAM. DISMISSED. Munn v. Fla. Parole Comm’n, 807 So. 2d 733 (Fla. 1st DCA 2002). BROWNING, C.J., BARFIELD and BENTON, JJ., concur.…
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Carter v. State, 937 So. 2d 686 (Fla. 1st DCA 2006)…PER CURIAM. DENIED. Munn v. Fla. Parole Comm’n, 807 So. 2d 733 (Fla. 1st DCA 2002). BARFIELD, VAN NORTWICK, and LEWIS, JJ., concur.…
Previewing 3 of 162 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bruce v. State, 679 So. 2d 45 (Fla. 3d DCA 1996)
- Regan v. State, 730 So. 2d 828 (Fla. 1st DCA 1999)
- Carter v. State, 752 So. 2d 725 (Fla. 3d DCA 2000)