PATRICK CHERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Patrick Cherry appeals the summary denial of his motion to withdraw his guilty plea to armed robbery and aggravated battery, claiming his trial counsel misadvised him about the amount of prison time he would serve. The court affirms the denial of two grounds but reverses and remands on the third ground regarding counsel's alleged misrepresentation about parole and work release eligibility.
A defendant may withdraw a guilty plea based on counsel's misadvice regarding the length of sentence or time to be served. Such claims can only be denied summarily if conclusively refuted by the record. Because the plea colloquy did not address whether counsel advised Cherry about actual time to serve, the claim is not refuted by the record, and Cherry is entitled to an evidentiary hearing.
[1] A motion for post-conviction relief is not conclusively refuted by the record when the attached portions do not negate the specific factual allegations of the movant.
[2] A defendant may be entitled to post-conviction relief based on ineffective assistance of counsel for failure to advise of the right to withdraw a plea when the sentence i…
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Join FLexlaw to unlock all legal intelligence“A defendant may seek to withdraw his plea on the ground that it was involuntary due to reliance on counsel's misadviee or misrepresentation regarding the length of a sentence or the amount of time the defendant would serve.”
Establishes the legal standard for withdrawal of guilty pleas based on counsel's misadvice about sentencing
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Join FLexlaw to unlock all legal intelligenceCherry pleaded guilty to armed robbery and aggravated battery, receiving concurrent sentences of fourteen years in prison plus two years probation on …
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[*598] NORTHCUTT, Judge.
Patrick Cherry appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without discussion on the first two grounds alleged in his motion, but we reverse and remand on the third ground.
Cherry pleaded guilty to armed robbery and aggravated battery and received concurrent sentences of fourteen years in prison followed by two years of probation on each count. Cherry seeks to withdraw his plea based on his trial counsel’s misadviee as to the amount of prison time he would actually serve if he pleaded guilty. Cherry claims that his trial counsel told him he would only serve four and one-half to five and one-half years in prison and then be sent to work release and placed on parole.1 He claims that he has since found out that he is not eligible for either work release or parole.
A defendant may seek to withdraw his plea on the ground that it was involuntary due to reliance on counsel’s misadviee or misrepresentation regarding the length of a sentence or the amount of time the defendant would serve. See State v. Leroux, 689 So. 2d 235 (Fla.1996); Hoch v. State, 679 So. 2d 847 (Fla. 2d DCA 1996). Such a claim can only be denied without an evidentiary hearing if it is conclusively refuted by the record. Leroux, 689 So. 2d at 237. Here, the circuit court denied Cherry’s claim on the basis that it was refuted by the transcript of the plea colloquy. However, the plea colloquy did not address whether or not Cherry’s trial counsel advised him regarding the amount of time Cherry would actually serve on his sentences. Since the matter was not addressed by the court in the plea colloquy, Cherry’s claim is not refuted by the record, and he is entitled to an evidentiary hearing on his claim. See id. at 238. Accordingly, we reverse and remand for an evidentiary hearing on the third ground alleged in Cherry’s motion.
Affirmed in part; reversed in part; and remanded.
DAVIS and CANADY, JJ„ Concur. . We recognize that parole is no longer available in Florida. However, this fact does not refute Cherry's claim that his attorney told him he would be eligible for parole after four and one-half to five and one-half years.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Brendon John Boule v. State, 884 So. 2d 1023 (Fla. 2d DCA 2004)…efendant an evidentiary hearing or accept the defendant’s allegations in the motion as true except to the extent that they are conclusively refuted by the record.” Iaconetti v. State, 869 So. 2d 695, 699 (Fla. 2d DCA 2004); see also Cherry v. State, 837 So. 2d 597, 598 (Fla. 2d DCA 2003). Boule’s claim that his attorney misled him regarding the certainty that he would receive a life sentence if he went to trial is a valid basis to seek withdrawal of a plea under rule 3.170(0. See Cherry, 837 So. 2d at 598 (“…
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Townsend v. State, 927 So. 2d 1064 (Fla. 4th DCA 2006)…n evidentiary hearing. Snodgrass, 837 So. 2d at 509. The colloquy in this record fails to conclusively refute the defendant’s allegation that his lawyer failed to advise him of the [*1066] three-year mandatory minimum sentence. See Cherry v. State, 837 So. 2d 597, 598 (Fla. 2d DCA 2003). While the record reflects a comment by the State to the court concerning the three year mandatory minimum, it is insufficient to establish that the defendant was informed of that fact by his counsel. Not only is that allegat…
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Cendejas v. State, 250 So. 3d 851 (Fla. 2d DCA 2018)
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Leroux, 689 So. 2d 235 (Fla. 1996)
- Hoch v. State, 679 So. 2d 847 (Fla. 2d DCA 1996)