DERRICK N. MILLER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Miller appeals the denial of his Rule 3.850 motion for postconviction relief, claiming his guilty plea was involuntary due to his trial counsel's affirmative misadvice about his potential sentence exposure on remand. The court reverses and remands for an evidentiary hearing because the record does not conclusively refute Miller's allegations.
The court reverses the trial court's summary denial of the Rule 3.850 motion and remands for an evidentiary hearing because the record does not conclusively refute Miller's claim that his counsel misadvised him about his potential exposure, making the plea potentially involuntary.
[1] A defendant's plea is involuntary when counsel affirmatively misadvises the defendant about the maximum possible sentence exposure, leading the defendant to accept a plea…
[2] A defendant cannot be retried on charges of which they were acquitted, even if the original charges were refiled after a prior conviction was reversed.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the defendant could only be retried on the lesser offenses of which he had been convicted”
Establishes the legal constraint on retrial after conviction on lesser included offenses, which counsel allegedly misrepresented to Miller.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMiller was originally charged with six counts of armed robbery but convicted of three counts of strong arm robbery and two counts of theft as lesser i…
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PER CURIAM.
Derrick N. Miller appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The defendant contends that his plea was involuntary. We reverse for further proceedings.*
Defendant-appellant Miller was charged with six counts of armed robbery. He was convicted of three counts of strong arm robbery and two counts of theft as lesser included offenses. On direct appeal, this court reversed for a new trial on account of a jury selection error. Miller v. State, 840 So. 2d 263 (Fla. 3d DCA 2002).
According to the defendant’s motion, on remand the State refiled the original armed robbery charges even though he had been acquitted of armed robbery and convicted of lesser included offenses. The defendant alleges that his trial counsel affirmatively misadvised him that he could be tried on the armed robbery charges and that he could be sentenced to the legal maximum for armed robbery. In reality the defendant could only be retried on the lesser offenses of which he had been convicted. See Fridovich v. State, 562 So. 2d 328, 329-30 (Fla.1990).
The defendant asserts that on account of this incorrect advice regarding his maximum possible prison time exposure, he accepted a plea offer from the State which he otherwise would have rejected. The defendant contends that the existence of the affirmative misadvice is clear on the face of the plea colloquy.
The trial court denied the Rule 3.850 motion and the defendant has appealed.
When a trial court summarily denies a motion for postconviction relief under Florida Rule of Criminal Procedure 3.800(a), 3.850, or 3.853, this court’s standard of review is as follows. “On appeal from the denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.” Fla.App. P.R. 9.141(b)(2)(D). In the present case the record now before us contains no record excerpts which conclusively refute the defendant’s claim. Accordingly, we reverse the order now before us and remand for the trial court to conduct an evidentiary hearing, or attach record excerpts which demonstrate conclusively that the defendant is not entitled to any relief.
Reversed and remanded for further proceedings consistent herewith.
*
We have taken judicial notice of this court's file in Miller v. State, 881 So. 2d 732 (Fla. 3d DCA 2004).
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Melton v. State, 908 So. 2d 1136 (Fla. 3d DCA 2005)…titled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate [*1137] relief.’ Fla. R.App. P. 9.141(b)(2)(D).” Gonzalez v. State, 2005 WL 1706399 (Fla. 3d DCA June 29, 2005); Miller v. State, 905 So. 2d 981 (Fla. 3d DCA 2005). As the trial judge did not attach a copy of the sentencing transcript and because the record does not conclusively refute defendant’s claim, we reverse the order as to this claim and remand for further proceedings consistent here…
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Schultheis v. State, 12 So. 3d 811 (Fla. 1st DCA 2009)…relief. With respect to the second, fifth, seventh, ninth, and tenth claims in appellant’s motion alleging ineffective assistance of counsel, this omission requires reversal. See Gay v. State, 995 So. 2d 541, 542 (Fla. 2d DCA 2008); Miller v. State, 905 So. 2d 981, 982 (Fla. 3d DCA 2005). We remand the order denying relief as to these claims and direct the postconviction court to either attach supportive record excerpts or conduct an evidentiary hearing. See Fla. R. App. P. 9.141(b)(2)(D). We also reverse t…
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Martin v. State, 927 So. 2d 13 (Fla. 1st DCA 2006)…tion (ground e in appellant’s 3.850 motion). On remand, the lower court either must conduct an evidentia-ry hearing or attach those record excerpts which conclusively refute the above-noted claims. See Fla. R.App. P. 9.141(b)(2)(D); Miller v. State, 905 So. 2d 981, 982 (Fla. 3d DCA 2005)(“In the present case the record now before us contains no record excerpts which conclusively refute the defendant’s claim. Accordingly, we reverse the order now before us and remand for the trial court to conduct an evidentia…
Authorities Cited
- Fridovich v. State, 562 So. 2d 328 (Fla. 1990)
- Gadson v. State, 840 So. 2d 263 (Fla. 3d DCA 2002)
- Deloris H. Parks v. Fla. Unemployment Appeals Comm'n, 881 So. 2d 732 (Fla. 3d DCA 2004)
- Miller v. State, 881 So. 2d 732 (Fla. 3d DCA 2004)