PEDRO P. BAYRON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court affirmed the denial of relief regarding habitual offender sentencing notice but reversed and remanded for an evidentiary hearing on ineffective assistance of counsel claims.
[1] A defendant's agreement to be sentenced as a habitual felony offender waives any claim of deficiency regarding notice of habitualization.
[2] A claim of ineffective assistance of counsel based on failure to discuss plea consequences or inform of a more favorable plea offer requires an evidentiary hearing unless…
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Join FLexlaw to unlock all legal intelligencePedro P. Bayron appealed the denial of his motion for post-conviction relief, alleging the State failed to provide notice of intent to seek habitual f…
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Motion for Rehearing and/or Clarification
ROTHENBERG, Judge.
We withdraw the opinion filed on January 18, 2006 on our own motion and substitute the following. See Johnson v. State, 184 So. 2d 161 (Fla.1966); City of Cooper City v. Farthing, 905 So. 2d 925 (Fla. 1st DCA 2005); Dart v. State, 417 So. 2d 1165 (Fla. 1st DCA 1982).
Pedro P. Bayron appeals the summary denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging that the State failed to file any notice of its intent to seek habitual felony offender sentencing under section 775.084. As to this claim, we affirm. The defendant admits in his motion that his sentence as a habitual felony offender was as a result of a negotiated plea. “The agreement to be sentenced as a habitual offender waives any claim of deficiency regarding notice of habitualization.” Osborn v. State, 915 So. 2d 189, 190 (Fla. 3d DCA 2005); Hope v. State, 766 So. 2d 343, 344 n. 1 (Fla. 5th DCA 2000).
The defendant also claims his attorneys (he alleges he was represented by five separate assistant public defenders during the pendency of his case), provided ineffective assistance of counsel (1) by failing to discuss with him the consequences of his plea; (2) by failing to inform him of an earlier and more favorable plea offer; and (3) because the public defender’s office represented a co-defendant, thereby creating a conflict of interest. As the record before us fails to conclusively demonstrate that Bayron is not entitled to any relief, we reverse the decision of the trial court and remand for an evidentiary hearing or attachment of those portions of the record that conclusively refute Bayron’s claim. See Fla. R.App. P. 9.141(b)(2)(D)(“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.”); Lane v. State, 913 So. 2d 737 (Fla. 3d DCA 2005).
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ingemar Keitt v. State, 50 So. 3d 801 (Fla. 4th DCA 2011)…le). By pleading no contest to the charge of driving while license suspended or revoked as a habitual offender, the appellant waived any claim that he had not accumulated the predicate offenses to qualify as a habitual offender. Cf. Bayron v. State, 921 So. 2d 719, 720 (Fla. 3d DCA 2006) (“The agreement to be sentenced as a habitual offender waives any claim of deficiency regarding notice of habitualization.”) (citation omitted). We caution the appellant that any further appeals of the circuit court’s denial…
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Santiago v. State, 165 So. 3d 804 (Fla. 3d DCA 2015)…n Motions to Stay Mandate, and for Remand PER CURIAM. After review of the motions to stay mandate and for remand, we withdraw the opinion filed on February 11, 2015, on our own motion and substitute the following in its place. See Bayron v. State, 921 So. 2d 719 (Fla. 3d DCA 2006). As foreshadowed in our opinion issued February 11, 2015, the Supreme Court of Florida has now definitively addressed the juvenile sentencing issues which arose in the aftermath of Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183…
Authorities Cited
- The State of Fla. on the relation of the Borden Co. v. Langley, 184 So. 2d 161 (Fla. 1966)
- Hope v. State, 766 So. 2d 343 (Fla. 5th DCA 2000)
- City of Cooper City/Florida Mun. Ins. Trust/Florida League of Cities v. Farthing, 905 So. 2d 925 (Fla. 1st DCA 2005)
- Osborn v. State, 915 So. 2d 189 (Fla. 3d DCA 2005)
- Dart v. State, 417 So. 2d 1165 (Fla. 1st DCA 1982)
- Lane v. State, 913 So. 2d 737 (Fla. 3d DCA 2005)