KANISKY EVANS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Kanisky Evans appealed the denial of his motion for postconviction relief, claiming his 1994 cocaine conviction was improperly used as a predicate offense for habitual offender sentencing and that his counsel was ineffective. The Third District Court of Appeal affirmed, holding that the plea colloquy clearly showed adjudication was imposed, the ineffectiveness claim was time-barred, and any claim about future consequences was facially incredible.
The court held that the plea colloquy conclusively establishes that adjudication was properly imposed in the 1994 case, making it a valid predicate offense for habitualization. The ineffectiveness claim based on incorrect penalty information was time-barred as filed more than two years after the 1994 adjudication. Any claim about counsel's statement regarding future consequences of the plea is facially incredible and does not warrant a hearing.
[1] A prior conviction may be counted as a predicate offense for habitualization purposes when the plea colloquy clearly indicates an adjudication of guilt was part of the pl…
[2] A claim of ineffective assistance of counsel based on misadvice regarding the maximum penalty for a prior offense is time-barred if not brought within two years of the ad…
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Join FLexlaw to unlock all legal intelligence“The plea colloquy twice states that the plea agreement is for an adjudication. Thus, adjudication was properly imposed as stated in the judgment.”
Establishes that the trial record conclusively refutes Evans's claim that his plea was for a withhold of adjudication.
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Join FLexlaw to unlock all legal intelligenceEvans was sentenced as a habitual offender in Miami-Dade County Circuit Court in 1997 based partly on a 1994 cocaine possession and sale conviction. I…
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COPE, J.
Kanisky Evans appeals an order denying his motion for postconviction relief. We affirm.
Defendant-appellant Evans is currently serving a habitual offender sentence imposed in Miami-Dade County Circuit Court case number 97-33314. He asserts that his earlier conviction for possession and sale of cocaine in Miami-Dade County Circuit Court case number 94-4827 was impermissibly counted as a predicate of fense for habitualization. He states that his plea bargain in the 1994 case was for a withhold of adjudication.
The plea colloquy conclusively refutes this claim. The plea colloquy twice states that the plea agreement is for an adjudication. Thus, adjudication was properly imposed as stated in the judgment. The 1994 case was properly counted as a predicate offense for habitualization purposes. See § 775.084(l)(a)3., (2), Fla. Stat. (1997).
The defendant asserts that his counsel was ineffective by misadvising him of the maximum penalty for the 1994 charges for possession and sale of cocaine. He contends that if correctly advised, he would have proceeded to trial. This claim was not brought within two years of the 1994 adjudication and is thus time-barred.
The defendant asserts that his counsel misadvised him by telling him that if he entered the plea in the 1994 case, that this was the last he would hear of that case. This claim appears to be based on the misunderstanding that his agreement was for a withhold of adjudication whereas it was, in fact, for an adjudication. Even if that were not so, we have held that a general statement that there will be no future consequences of the plea “is properly viewed as addressing the civil effects of the plea, not future recidivism.” Collier v. State, 796 So. 2d 629, 630 (Fla. 3d DCA 2001). We recognize that the rule followed in this district differs from that followed in the Fourth District. Wallace v. State, 833 So. 2d 796 (Fla. 3d DCA 2002).*
Finally, the defendant is not entitled to a hearing on his claim in any event because, under the circumstances of this case, the claim is facially incredible. The plea bargain in this case was for an adjudication on the charge of selling a small quantity of cocaine to an undercover police officer. The agreed sentence was two days credit for time already served. The defendant now says that if he had known that the 1994 conviction could be used against him in the future, he would have rejected the • plea bargain for credit for time served, and instead proceeded to trial on felonies subjecting him to a potential sentence of up to fifteen years in prison. This claim is so thoroughly contrary to common sense as to be inherently incredible, and does not warrant a hearing. See McLin v. State, 827 So. 2d 948, 955 (Fla.2002); Stephens v. State, 829 So. 2d 945, 946 (Fla. 1st DCA 2002); Padron v. State, 827 So. 2d 393, 394 (Fla. 2d DCA 2002).
Affirmed.
*
We decline to certify direct conflict with the Fourth District cases, see, e.g., Smith v. State, 784 So. 2d 460 (Fla. 4th DCA 2000), because for the reason stated in the concluding portion of this opinion, the defendant would not be entitled to relief in any event.
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Montero v. State, 996 So. 2d 888 (Fla. 4th DCA 2008)…a rule 3.850 motion must be accepted as true, and that an evidentiary hearing is required if the allegations are not conclusively refuted by the record. An exception exists, however, where the allegations are “inherently incredible.” Evans v. State, 843 So. 2d 938, 940 (Fla. 3d DCA 2003) (finding that a defendant’s claim that he would not have entered his plea was “so thoroughly contrary to common sense as to be inherently incredible, and does not warrant a hearing”). In this case, appellant’s suggestion tha…
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Capalbo v. State, 73 So. 3d 838 (Fla. 4th DCA 2011)…Fla. 4th DCA 2008) (holding that, under the circumstances of that case, the allegation that defendant would not have entered the plea was “inherently unbelievable and contrary to common sense”), rev. denied, 15 So. 3d 581 (Fla.2009); Evans v. State, 843 So. 2d 938, 940 (Fla. 3d DCA 2003) (finding that a defendant’s claim that he would not have entered his plea was “so thoroughly contrary to common sense as to be inherently incredible, and does not warrant a hearing”). Appellant admits he was aware of self-de…
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Simon v. State, 997 So. 2d 490 (Fla. 4th DCA 2008)…Affirmed in Part; Reversed in Part; and Remanded for Further Proceedings Consistent with this Opinion. WARNER and MAY, JJ., concur. . Appellant’s allegation that counsel’s advice coerced his plea might be inherently incredible. See Evans v. State, 843 So. 2d 938, 940 (Fla. 3d DCA 2003) (finding that defendant's claim that he would not have entered his plea was “so thoroughly contrary to common sense as to be inherently incredible, and does not warrant a hearing”). In addition, appellant may have failed to m…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McLIN v. State, 827 So. 2d 948 (Fla. 2002)
- Smith v. State, 784 So. 2d 460 (Fla. 4th DCA 2000)
- Stephens v. State, 829 So. 2d 945 (Fla. 1st DCA 2002)
- Collier v. State, 796 So. 2d 629 (Fla. 3d DCA 2001)
- Wallace v. State, 833 So. 2d 796 (Fla. 3d DCA 2002)
- Gevas v. Fernandez, 833 So. 2d 796 (Fla. 3d DCA 2002)
- Padron v. State, 827 So. 2d 393 (Fla. 2d DCA 2002)