JACK G. CLEMMONS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's claim that counsel affirmatively misadvised him about transferring probation to North Carolina states a facially sufficient ineffective assistance of counsel claim, warranting reversal of summary denial and remand for evidentiary hearing.
An offender who enters a plea in reasonable reliance on counsel's affirmative misadvice regarding a collateral consequence of the plea may withdraw the plea based on ineffective assistance of counsel.
[1] An offender who enters a plea in reasonable reliance on counsel's affirmative misadvice regarding a collateral consequence of the plea states a facially sufficient claim…
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Join FLexlaw to unlock all legal intelligence“an offender who enters a plea in reasonable reliance on his attorney's misadvice as to a collateral consequence should be allowed to withdraw his plea”
Court stating the legal standard for ineffective assistance based on misadvice about collateral consequences
Appellant was advised by counsel that he could transfer his probation to North Carolina, but this advice was incorrect.…
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PER CURIAM.
The appellant challenges the trial court’s order summarily denying his motion alleging ineffective assistance of counsel filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the appellant has stated a facially sufficient claim that his counsel was ineffective in affirmatively misadvising him as to his ability to transfer his probation, we reverse.
The appellant alleges he reasonably relied on counsel’s affirmative misadvice that the appellant could transfer his probation to North Carolina. The appellant’s claim is facially sufficient because an offender who enters a plea in reasonable reliance on his attorney’s misadvice as to a collateral consequence should be allowed to withdraw his plea. E.g., State v. Leroux, 689 So. 2d 235, 238 (Fla.1996); State v. Sallato, 519 So. 2d 605, 606 (Fla.1988); Dickey v. State, 30 Fla. L. Weekly D443, — So. 2d -, 2005 WL 350313 (Fla. 1st DCA Feb.15, 2005), rev. pending, No. SC05-0516; Brazeail v. State, 821 So. 2d 364, 366-68 (Fla. 1st DCA 2002); Eccleston v. State, 706 So. 2d 368, 369 (Fla. 1st DCA 1998).
We, therefore, reverse the summary denial of the appellant’s claim for ineffective assistance of counsel and remand to the trial court for an evidentiary hearing or to refute the appellant’s claim with record attachments.
REVERSED AND REMANDED.
KAHN, C.J., LEWIS and POLSTON, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Johnson v. State, 971 So. 2d 212 (Fla. 4th DCA 2008)…o inform [the defendant] of the collateral consequences may not have rendered the plea involuntary, ... his ignorance of it does meet the ‘good cause’ test for a pre-sentence plea withdrawal.” Johnson, 947 So. 2d at 1210; see also Clemmons v. State, 919 So. 2d 657, 657 (Fla. 1st DCA 2006) (“[A]n offender who enters a plea in reasonable reliance on his attorney’s misadvice as to a collateral consequence should be allowed to withdraw his plea.”) (citing State v. Leroux, 689 So. 2d 235, 238 (Fla.1996)); Graham,…
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Mosley v. State, 944 So. 2d 1152 (Fla. 1st DCA 2006)…s misadvice regarding the length of time the defendant would serve requires an evidentiary hearing if not refuted by the transcript of the plea colloquy or some other part of the record. State v. Leroux, 689 So. 2d 235 (Fla.1996); Clemmons v. State, 919 So. 2d 657 (Fla. 1st DCA 2006); Cherry v. State, 837 So. 2d 597 (Fla. 2d DCA 2003). On remand, the trial court is directed to attach portions of the record refuting appellant’s claim in Issue I, or to hold an evidentiary hearing. AFFIRMED IN PART, REVERSED…
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Channing Alberto Stewart v. State (Fla. 4th DCA 2021)
Authorities Cited
- State v. Leroux, 689 So. 2d 235 (Fla. 1996)
- Brazeail v. State, 821 So. 2d 364 (Fla. 1st DCA 2002)
- State v. Sallato, 519 So. 2d 605 (Fla. 1988)
- Eccleston v. State, 706 So. 2d 368 (Fla. 1st DCA 1998)