RICHARD MIRALLES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant's motion for post-conviction relief was legally insufficient because it failed to state when he discovered counsel's alleged affirmative misadvice.
The defendant sought to withdraw his plea based on alleged affirmative misadvice from his attorney regarding future occupational licensing. The trial …
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PER CURIAM.
The defendant, Richard Miralles appeals an order summarily denying his motion for post-conviction relief in which he seeks to withdraw his plea in an earlier conviction. We affirm the order below without prejudice.
The allegation that his attorney explicitly assured him in 1996 that his nolo contendere plea would not preclude his future occupational licensing by the State as a vehicle recovery agent (i.e., one licensed to repossess vehicles) presents a claim of affirmative misadvice, which this Court has determined to be reviewable under rule 3.850. See Ghanavati v. State, 820 So. 2d 989 (Fla. 4th DCA 2002); Smith v. State, 784 So. 2d 460 (Fla. 4th DCA 2000). A defendant may be entitled to withdraw a plea entered in reliance on affirmative misadvice which results in prejudice even if the misadvice concerns collateral consequences. Kelley v. State, 821 So. 2d 1255 (Fla. 4th DCA 2002). Notwithstanding the expiration of the two year filing deadline, an allegation of affirmative misadvice is reviewable under Rule 3.850 if a claim is filed within two years of discovering counsel’s misadvice. See Ghanavati v. State, 820 So. 2d 989 (Fla. 4th DCA 2002) and Rodriguez v. State, 824 So. 2d 328 (Fla. 3d DCA 2002).
The defendant does not allege in his motion when he discovered counsel’s affirmative misadvice. He claims to have been advised his felony convictions bar him from maintaining the license, and had adjudication been withheld in his 1996 case, he would otherwise be eligible for licensing. His claim is legally insufficient in that it cannot be determined if he filed his motion within two years of discovering counsel’s alleged affirmative misadvice. Accordingly, we affirm the order denying the motion without prejudice to his refiling of a legally sufficient motion within thirty days alleging when the defendant first learned that he received affirmative misad-vice from counsel.
KLEIN, GROSS and MAY, JJ„ concur.
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Marshall v. State, 983 So. 2d 680 (Fla. 4th DCA 2008)…have from the date of discovery of the collateral civil consequences to file a motion or whether the defendant had two years from the date of discovery to file a postconviction motion. We have followed the holding of Rodriguez in Miralles v. State, 837 So. 2d 1083 (Fla. 4th DCA 2003). We recede from Miralles’ holding that a rule 3.850 motion may be filed within two years of discovering counsel’s mis-advice regarding a collateral civil consequence of entering a plea. If a collateral consequence of a plea, suc…
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Kelly v. State, 907 So. 2d 550 (Fla. 3d DCA 2005)…nd to claim relief from judgment); See also Lepper, 826 So. 2d at 364 (noting that courts occasionally treat untimely filed motions to withdraw filed under Rule 3.170(1) as if they were proper postcon-viction motions). . But see, Miralles v. State, 837 So. 2d 1083 (Fla. 4th DCA 2003); Jones v. State, 814 So. 2d 446 (Fla. 4th DCA 2001).…
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State v. S.S., 40 So. 3d 6 (Fla. 4th DCA 2010)…y misadvised him that, because adjudication would be withheld, he would not have a criminal record. Our court, en banc, determined that his postconviction motion was untimely. In so ruling, we receded from our earlier decision in Miralles v. State, 837 So. 2d 1083 (Fla. 4th DCA 2003), wherein we had held “that a rule 3.850 motion may be filed within two years of discovering counsel’s misadvice regarding a collateral civil consequence of entering a plea.” Marshall, 983 So. 2d at 682. We changed our holding to…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Smith v. State, 784 So. 2d 460 (Fla. 4th DCA 2000)
- Assadollah Ghanavati v. State, 820 So. 2d 989 (Fla. 4th DCA 2002)
- ECS Holdings Inc. v. Schillinger, 821 So. 2d 1255 (Fla. 4th DCA 2002)
- Dudley Scott v. State, 824 So. 2d 328 (Fla. 3d DCA 2002)
- Rodriguez v. State, 824 So. 2d 328 (Fla. 3d DCA 2002)