DANIEL L. BARRS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed summary denial of Rule 3.850 motion, holding that defendant's ineffective assistance and involuntary plea claims failed because habitual offender status did not affect his actual eligibility for early release programs under post-1994 law.
A defendant's claim of ineffective assistance based on counsel's failure to advise about early release program ineligibility fails when the defendant would not have been entitled to such programs regardless of habitual offender status.
[1] A defendant's ineffective assistance claim based on counsel's failure to advise about early release program ineligibility fails when the defendant would not have been ent…
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Join FLexlaw to unlock all legal intelligenceDefendant Barrs committed offenses after January 1, 1994, and received a habitual felony offender adjudication. He filed a Rule 3.850 motion claiming …
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PER CURIAM.
The appellant challenges the trial court’s order summarily denying the appellant’s motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The appellant alleges that his counsel was ineffective, and that his plea was involuntary, because he was not advised that the habitual offender adjudication would render him ineligible for “early release programs, etc.” Because the appellant committed his offenses after January 1, 1994, when the Legislature abolished automatic grants of gain time, the appellant would not have been entitled to such gain time regardless of his habitual felony offender status. See Ferguson v. State, 677 So. 2d 968 (Fla. 3d DCA 1996). Furthermore, as the habitual felony offender statute also explicitly states that section 947.1405, Florida Statutes, applies to habitual felony offenders, the appellant’s eligibility for conditional release is also unaffected by his habitual felony offender sentence. See § 775.084(4)(j), Fla. Stat. (2002). Finally, the appellant does not allege that had he been correctly advised he would not have pled, but would have insisted on a jury trial. See Brazeail v. State, 821 So. 2d 364, 368 (Fla. 1st DCA 2002). We, therefore, conclude that the appellant’s allegations do not establish that his counsel was ineffective or that his plea was unknowingly and involuntary. We accordingly affirm the summary denial of the appellant’s motion.
AFFIRMED.
ERVIN, PADOVANO and LEWIS, JJ., concur.
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Hampton v. State, 217 So. 3d 1096 (Fla. 5th DCA 2017)…ssion of gain time is still required in the plea colloquy for a defendant who may be sentenced as an HFO. The Florida legislature has eliminat [*1099] ed automatic grants of gain time for crimes committed on or after January 1, 1994. Barrs v. State, 883 So. 2d 846, 846 (Fla. 1st DCA 2004). Therefore, the First, Third, and Fourth Districts concluded that a discussion of the impact of habitualization on gain time in the plea colloquy,is no longer needed. Smith v. State, 126 So. 3d 397, 400 (Fla. 4th DCA 2013);…
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Lerandros L. Smith v. State, 126 So. 3d 397 (Fla. 4th DCA 2013)…change, the first and third districts held that the failure to advise about ineligibility for basic gain time did not entitle a defendant to relief, and that adjudicating a defendant as a habitual felony offender made no difference. Barrs v. State, 883 So. 2d 846, 846 (Fla. 1st DCA 2004), rev. denied, 892 So. 2d 1011 (Fla.2004); Ferguson v. State, 677 So. 2d 968, 969 (Fla. 3d DCA 1996). This court later followed Ferguson in a citation opinion. Reed v. State, 687 So. 2d 77 (Fla. 4th DCA 1997). We continue to…
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Ashe v. State, 951 So. 2d 1023 (Fla. 1st DCA 2007)…challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s denial of the appellant’s second claim without further discussion. Barrs v. State, 883 So. 2d 846 (Fla. 1st DCA 2004). However, because the state did not file written notice of its intent to sentence the appellant under the habitual offender statute prior to the appellant’s entering an open plea of guilty, we reverse the trial court’s summary de…
Authorities Cited
- Brazeail v. State, 821 So. 2d 364 (Fla. 1st DCA 2002)
- Ferguson v. State, 677 So. 2d 968 (Fla. 3d DCA 1996)