RONALD FORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ronald Ford appealed the denial of his Rule 3.850 motion claiming ineffective assistance of counsel because his attorney misadvised him that the Parole Commission, rather than the trial court, would decide whether his sentences would be concurrent. The court found the claim had merit but was procedurally deficient because Ford did not seek withdrawal of his plea, and reversed to allow him to amend his motion.
The court held that Ford stated a colorable claim of ineffective assistance of counsel because counsel misadvised him as to which entity had the authority to determine concurrent sentencing. However, because Ford sought modification of his sentence rather than withdrawal of his plea, the claim was procedurally insufficient under Rule 3.850, and the case was remanded to allow Ford to amend his motion to seek withdrawal of the plea.
[1] A defendant's plea is involuntary if counsel affirmatively misadvises the defendant regarding the concurrent imposition of sentences.
[2] The authority to order sentences to be served concurrently or consecutively rests solely with the trial court, not the Department of Corrections or the Parole Commission.
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 trial court must exercise its discretion to order a sentence imposed for an offense committed while on community release concurrently or consecutively to his or her community release sentence and cannot defer the structure of the sentence to the [DOC] because the [DOC] lacks such sentencing authority”
Establishes that only the trial court, not the DOC or Parole Commission, has authority to determine whether sentences are concurrent or consecutive, making counsel's misadvice legally incorrect.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFord requested as a condition of entering his plea that his sentences be imposed concurrently. His trial counsel provided advice suggesting the senten…
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PER CURIAM.
Appellant Ronald Ford appeals an order denying his rule 3.850 motion in which he asserts that his counsel was ineffective because prior to entering his plea, she affirmatively misadvised him as to who was responsible for concurrently imposing the sentences in the instant case to his sentence imposed for his conditional release violation.
The record indicates that the appellant requested, as a condition of entering his plea, that the sentences be concurrently imposed, and that counsel provided advice which could reasonably lead him to believe that they would be concurrently imposed. The sentences have been consecutively imposed. Neither the plea hearing transcript nor the plea form attached by the trial court in support of its order conclusively refute the claim.
However, the record contains a letter in which trial counsel misadvises the appellant, and makes reference to having previously provided him the same misadvice, that it was up to the Parole Commission or the Department of Corrections [DOC] to concurrently impose the sentences. This is incorrect. See § 921.16(1), Fla. Stat. (2005) (“Sentences of imprisonment for offenses not charged in the same indictment, information, or affidavit shall be served consecutively unless the court directs that two or more sentences be served concurrently”); Richardson v. State, 947 So. 2d 1219, 1220 (Fla. 1st DCA 2007) (“[T]he trial court must exercise its discretion to order a sentence imposed for an offense committed while on community release concurrently or consecutively to his or her community release sentence and cannot defer the structure of the sentence to the [DOC] because the [DOC] lacks such sentencing authority”); Bruce v. State, 679 So. 2d 45 (Fla. 3d DCA 1996) (“Where the trial judge fails to specify whether sentences imposed for offenses not charged in the same information or indictment be served concurrently, section 921.16(1) dictates that such sentences be served consecutively”).
Counsel failed to ask the court to concurrently impose the sentences.
Although the appellant has submitted a claim which is not refuted by the record, he does not state that he desires to withdraw his plea, but instead seeks to have the court order that the sentences be concurrently imposed. The appellant has asserted that his plea was involuntary due to misadvice from counsel, and to constitute a legally sufficient claim he must state that he seeks to withdraw his plea. We therefore reverse and remand for the trial court to allow the appellant the opportunity to amend his motion to state that he seeks to withdraw his plea. See Spera v. State, 971 So. 2d 754 (Fla.2007).
REVERSED AND REMANDED.
ALLEN, WOLF, and POLSTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Widemond v. State, 27 So. 3d 162 (Fla. 1st DCA 2010)…rrent or consecutive to his or her community release sentence and cannot defer the structure of the sentence to the Department of Corrections because the Department lacks such sentencing authority. Id. (citations omitted); see also Ford v. State, 975 So. 2d 1191 (Fla. 1st DCA 2008) (same). The Richardson court went on to hold that the appellant’s sentence was illegal. Richardson, 947 So. 2d at 1221. Because the appellant has alleged facially sufficient claims for ineffective assistance of counsel and an ill…
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Bruce v. State, 679 So. 2d 45 (Fla. 3d DCA 1996)
- Richardson v. State, 947 So. 2d 1219 (Fla. 1st DCA 2007)