JEROME O'NEAL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed summary denial of postconviction relief where trial counsel allegedly gave affirmative misadvice about gain time eligibility, holding that such misadvice is grounds for relief if not conclusively refuted by the record.
Affirmative misadvice by trial counsel regarding gain time eligibility constitutes grounds for postconviction relief under Florida Rule of Criminal Procedure 3.850 if not conclusively refuted by the record.
[1] Affirmative misadvice by trial counsel regarding gain time eligibility constitutes grounds for postconviction relief under Florida Rule of Criminal Procedure 3.850 if not…
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Join FLexlaw to unlock all legal intelligence“Affirmative misadvice of counsel as to eligibility for gain time is a basis for postconviction relief, if not refuted by the record.”
Court explaining the legal standard for postconviction relief based on counsel's misadvice about gain time.
O'Neal filed a postconviction motion alleging his trial counsel affirmatively misadvised him regarding his eligibility for gain time. The trial court …
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PER CURIAM.
The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he alleged his trial counsel affirmatively misadvised him regarding his eligibility for gain time. Because the trial court failed to attach portions of the record conclusively refuting the appellant’s claim, we reverse.
The trial court concluded that the appellant was not entitled to relief because he was fully advised as to the length of his sentence and attached portions of the sentencing hearing to support its conclusion. However, the appellant is not alleging ineffective assistance of counsel for failure of trial counsel to advise him of the potential length of his sentence, but instead for trial counsel’s misadvice regarding how much of the imposed sentence he would actually serve. Affirmative misadvice of counsel as to eligibility for gain time is a basis for postconviction relief, if not refuted by the record. See Jordan v. State, 833 So. 2d 266 (Fla. 3d DCA 2002); Wilson v. State, 760 So. 2d 237 (Fla. 2d DCA 2000); Little v. State, 673 So. 2d 151 (Fla. 1st DCA 1996).
Accordingly, we reverse the trial court’s order and remand with instructions to either hold an evidentiary hearing or attach portions of the record conclusively refuting the appellant’s claim.
REVERSED and REMANDED.
ALLEN, DAVIS and BENTON, JJ., concur.
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Citator
Cited By
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Siner v. State, 876 So. 2d 688 (Fla. 5th DCA 2004)…aised this issue were attached, however. Therefore, we asked for a response from the State, which acknowledged that such affirmative misadvice by counsel as to the eligibility for gain time is a basis for post-conviction relief. See O’Neal v. State, 860 So. 2d 456 (Fla. 1st DCA 2003); Montgomery v. State, 615 So. 2d 226 (Fla. 5th DCA 1993). At the plea hearing, Siner answered in the negative when the court asked if anyone had threatened or coerced him to do anything regarding the plea agreement. However, Sin…
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Wilson v. State, 70 So. 3d 737 (Fla. 1st DCA 2011)…ges that he would not have entered a plea/admission had he known that there was a possibility that his earned gain time would be forfeited. Wilson has filed a timely, facially sufficient claim which is not refuted by the record. See O’Neal v. State, 860 So. 2d 456 (Fla. 1st DCA 2003) (holding that affirmative misadvice by counsel as to the eligibility for gain time is a basis for postconviction relief). Accordingly, we AFFIRM the denial of grounds one and two, but REVERSE and REMAND for the trial court to a…
Authorities Cited
- Little v. State, 673 So. 2d 151 (Fla. 1st DCA 1996)
- Starling v. State, 760 So. 2d 237 (Fla. 2d DCA 2000)
- Onaray Vashon Jordan v. State, 833 So. 2d 266 (Fla. 3d DCA 2002)