THOMAS SHELTON POISAL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a motion for post-conviction relief alleging involuntary plea due to attorney misadvice is legally deficient without an allegation that the defendant would not have entered the plea had they received correct advice.
Appellant alleged his attorney misadvised him about his sentence if he pled guilty to robbery. He was sentenced to four years incarceration and three …
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TAYLOR, J.
Poisal appeals an order summarily denying his rule 3.850 motion, in which he alleged, inter alia, that his plea was involuntary because of misadvice given him by his attorney. According to Poisal, his attorney told him that if he pled guilty to one count of robbery, he would be sentenced to a year in jail and some probation. Poisal entered a plea and was sentenced to four years incarceration followed by threé years of probation.
In his motion for post-conviction relief, Poisal did not allege that he would not have entered the plea had he been given correct advice of counsel. Without this allegation, the motion is legally deficient. We therefore affirm the summary denial of his motion. Our affirmance, however, is without prejudice to his ability to file an amended 3.850 motion. See Roldan v. State, 695 So. 2d 864 (Fla. 4th DCA 1997); Days v. State, 637 So. 2d 66 (Fla. 1st DCA 1994).
We find no merit in the other claims raised by appellant for post-conviction relief. Thus, any amended rule 3.850 motion filed by appellant shall be limited to his claim of ineffective assistance of counsel based on misadvice concerning the consequences of his plea.
AFFIRMED, without prejudice.
STONE and KLEIN, JJ., concur.
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Citator
Cited By
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DeLUCCA v. State, 64 So. 3d 164 (Fla. 4th DCA 2011)…uggestions of ineffective assistance of counsel, the motion does not allege that, but for the deficiency of counsel (which is not clearly specified in this motion), appellant would not have pleaded and would have proceeded to trial. Poisal v. State, 876 So. 2d 1262 (Fla. 4th DCA 2004). See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Because the Rule 3.850(b) time limit has now run as to the November 2008 plea, we affirm without prejudice for appellant to file a sufficient motion withi…
Authorities Cited
- Roldan v. State, 695 So. 2d 864 (Fla. 4th DCA 1997)
- Days v. State, 637 So. 2d 66 (Fla. 1st DCA 1994)