ELVIS D. SUMMERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Elvis Summers appealed the denial of his postconviction motion claiming ineffective assistance of counsel or plea withdrawal based on alleged misunderstanding of his sentence. The court affirmed the denial because Summers failed to demonstrate prejudice, as he would serve the same prison time regardless of which sentencing method was applied following his probation violation.
Summers failed to show prejudice because he would serve the same amount of prison time regardless of which sentencing method the trial court employed following his probation violation. The court affirmed the denial of his postconviction motion.
[1] A defendant seeking postconviction relief based on a misunderstanding of a plea agreement must demonstrate prejudice resulting from that misunderstanding.
[2] Under Florida law, following statutory amendments in 1988 and 1989, the Department of Corrections may forfeit all gain time upon revocation of probation.
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Join FLexlaw to unlock all legal intelligence“Since the 1989 statutory change, the preferred sentencing method is to sentence the defendant to the entire original prison term with credit for all time served, as occurred in this case.”
Establishes the legal framework governing sentencing after probation violation and shows the sentencing used here was preferred under current law
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Join FLexlaw to unlock all legal intelligenceSummers was sentenced in 1994 to eight years imprisonment suspended after five years, followed by three years probation. He violated probation and ent…
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BLUE, Chief Judge.
Elvis D. Summers appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In 1994 Summers was sentenced to a prison term of eight years to be suspended after five years, followed by three years of probation. Summers violated probation and entered into a plea agreement that stated that he would “serve the remainder of his suspended sentence.” The judgment and sentence state that he was given an eight-year sentence with credit for time served in jail and prison. In the rule 3.850 motion, Summers alleged that he thought he would be given a three-year sentence with no credit for previous prison time. Summers alleged that he would not have pleaded if he had known the sentence that he would receive.
The trial court denied the postconviction motion because Summers has failed to show prejudice.
We agree and therefore affirm.
Section 944.28(1), Florida Statutes, was amended in 1988 and 1989 to allow the Department of Corrections to forfeit all gain time upon the revocation of a conditional release, probation, or community control. See ch. 88-122, § 9, Laws of Fla.; ch. 89-531, § 6, Laws of Fla. Prior to the statutory changes, a defendant who violated the probationary portion of a true split sentence could only be sentenced to a prison term that was no greater than the suspended portion of the original sentence. See Poore v. State, 531 So. 2d 161, 164 (Fla.1988); Owens v. State, 557 So. 2d 199, 200 (Fla. 2d DCA 1990).
Since the 1989 statutory change, the preferred sentencing method is to sentence the defendant to the entire original prison term with credit for all time served, as occurred in this case. Crews v. State, 779 So. 2d 492, 493 (Fla. 2d DCA 2000).
However, the trial court still has the option of sentencing the defendant to the suspended term with no credit for time served. See Moore v. Stephens, 804 So. 2d 575 (Fla. 5th DCA 2002). Regardless of which of the above the trial court chooses for the new sentence, the Department of Corrections is entitled to forfeit the same amount of gain time. See Eldridge v. Moore, 760 So. 2d 888, 892 (Fla. 2000). Because Summers would serve the same time regardless of which sentencing method was used, he has failed to show prejudice.
Affirmed.
FULMER and COVINGTON, JJ„ concur.
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State v. Perez, 979 So. 2d 986 (Fla. 3d DCA 2008)…e charges. The present sentence, thus, was [*988] the functional (and permissible) equivalent of a “standard” sentence of, 1039 (675 plus 364) days, 34.2 months, with credit for all the time (675 days) he had previously served. See Summers v. State, 817 So. 2d 950 (Fla. 2d DCA 2002) (upholding sentencing order adding period creditable for time served). Because such a sentence and the period Perez has already served or is going to serve is obviously more than the minimum guidelines sentence represented by the…
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Price v. State, 223 So. 3d 330 (Fla. 2d DCA 2017)…PER CURIAM. ' Affirmed. See Summers v. State, 817 So. 2d 950 (Fla. 2d DCA 2002); Wallace v. State, 618 So. 2d 797 (Fla. 2d DCA 1993). NORTHCUTT, BLACK, and LUCAS, JJ., Concur.…
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Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Eldridge v. Moore, 760 So. 2d 888 (Fla. 2000)
- Crews v. State, 779 So. 2d 492 (Fla. 2d DCA 2000)
- Moore v. Stephens, 804 So. 2d 575 (Fla. 5th DCA 2002)
- Hunter v. State, 779 So. 2d 492 (Fla. 2d DCA 2000)
- Owens v. State, 557 So. 2d 199 (Fla. 2d DCA 1990)