JOSUE COLLAZO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Josué Collazo appeals the denial of his Rule 3.850 postconviction relief motion based on alleged misadvice by counsel regarding his sentence length. The court reverses as to the sentence claim because the record does not conclusively refute his assertion that he entered a guilty plea based on counsel's promise of a ten-year sentence, while affirming dismissal of his remaining claims.
The court reversed as to Collazo's sentence-length claim because the record does not conclusively refute his allegations. The plea colloquy does not specifically address whether counsel promised a specific sentence, and the trial court did not specifically question Collazo on this issue, requiring remand for record attachments or an evidentiary hearing. The court affirmed the denial of Collazo's remaining claims.
[1] Misrepresentations or misadvice by counsel regarding the length of a sentence can be the basis for postconviction relief.
[2] An allegation that counsel misrepresented the length of a defendant's sentence can be summarily denied if the plea colloquy conclusively refutes the allegations.
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Join FLexlaw to unlock all legal intelligence“Misrepresentations or misadvice by counsel about the length of a sentence can be the basis for postconviction relief.”
Establishes the legal principle that counsel's misadvice regarding sentencing is grounds for postconviction relief.
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Join FLexlaw to unlock all legal intelligenceCollazo, who does not speak English, pleaded guilty to robbery with a firearm with a mask, carrying a mandatory minimum of ten years. He was sentenced…
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Josué Collazo appeals the denial of his rule 3.850 motion for postconviction relief. Because the record does not conclusively refute his claim that he entered a plea based upon misadvice from counsel regarding the length of his sentence, we reverse. The remainder of Collazo’s claims are without merit, and we affirm as to them.
Collazo, who does not speak English, pled guilty to robbery with a firearm with a mask, which carries a minimum mandatory term of ten years. The court sentenced Collazo to fifteen years in the Department of Corrections, with a ten-year minimum mandatory term, followed by two years of community control and three years of probation.
Collazo contends that he entered his plea with the understanding, gained from his counsel, that he would receive a ten-year sentence and that his understanding was memorialized in the written plea agreement that he signed. He attached to his motion a copy of the Spanish version of the plea agreement, which does in fact include the promise of a maximum sentence of ten years. Collazo also attached an English translation of the plea agreement, which is inconsistent with the Spanish version because of the addition of the handwritten notation “sentencing up to court with at least,” followed by an arrow indicating that this language was to be inserted in front of the ten-year minimum mandatory sentence. He alleges that this additional language was not on the English version when he signed it.
Misrepresentations or misadvice by counsel about the length of a sentence can be the basis for postconviction relief. See State v. Leroux, 689 So.2d 235, 236 (Fla.1997); Fisher v. State, 824 So.2d 1050 (Fla. 3d DCA 2002). An allegation that counsel misrepresented the length of time that a defendant would serve can be summarily denied if the plea colloquy conclusively refutes the allegations. Leroux; Montgomery v. State, 615 So.2d 226 (Fla. 5th DCA 1993). However, a general question about promises made in exchange for a plea is insufficient to refute an allegation of specific misadvice by counsel about the length of a sentence. DeMonia v. State, 966 So.2d 22 (Fla. 2d DCA 2007); Fisher v. State, 824 So.2d 1050, 1052 (Fla. 3d DCA 2002); Johnson v. State, 776 So.2d 1024 (Fla. 1st DCA 2001).
In this case, the plea colloquy does not refute Collazo’s allegations that he entered his plea with the understanding that he would be receiving a ten-year minimum mandatory sentence and only a ten-year minimum mandatory sentence and that when he signed the English translation of the plea agreement, it provided for a ten-year sentence, just as the Spanish version had. In fact, the plea colloquy reflects some confusion by Collazo and demonstrates that the trial court did not specifically ask him if his counsel had promised him a specific sentence. Since the record does not conclusively refute Collazo’s allegations as to this claim, this case must be remanded for attachment of those portions of the record conclusively refuting Colla-zo’s allegations or for an evidentiary hearing.
The denial of the remainder of Collazo’s claims is affirmed.
AFFIRMED in part; REVERSED and REMANDED FOR RECORD ATTACHMENTS OR AN EVIDENTIARY HEARING.
SAWAYA and EVANDER, JJ. and PLEUS, R., Senior Judge, concur.
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Lamkin v. State, 215 So. 3d 640 (Fla. 5th DCA 2017)…he would get certain gain time. Id. at 238. However, “a [court’s] general question about promises made in exchange for a plea is insufficient to refute an allegation of specific misadviee by counsel about the length of a sentence.” Collazo v. State, 8 So. 3d 1273, 1274 (Fla. 5th DCA 2009). Although the court informed Appellant of the possible maximum sentence he could receive, the court did not mention that Appellant could face up to the maximum [*642] term of imprisonment by pleading open to the court, an…
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Dontrevius Byron v. State, 241 So. 3d 271 (Fla. 5th DCA 2018)…icient to refute Appellant's claim of affirmative misadvice. "[A] general question about promises made in exchange for a plea is insufficient to refute an allegation of specific misadvice by counsel about the length of a sentence." Collazo v. State, 8 So. 3d 1273, 1274 (Fla. 5th DCA 2009) (citations omitted); see Lamkin v. State, 215 So. 3d 640, 641 (Fla. 5th DCA 2017) ; Ostane v. State, 73 So. 3d 335, 335 (Fla. 5th DCA 2011). Accordingly, we reverse the summary denial of this portion of ground one and reman…
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Dontrevius Byron v. State (Fla. 5th DCA 2018)…t to refute Appellant’s claim of affirmative misadvice. "[A] general question about promises made in exchange for a plea is insufficient to refute an allegation of specific misadvice by counsel about the length of a sentence." Collazo v. State, 8 So. 3d 1273, 1274 (Fla. 5th DCA 2009) (citations omitted); see Lamkin v. State, 215 So. 3d 640, 641 (Fla. 5th DCA 2017); Ostane v. State, 73 So. 3d 335, 335 (Fla. 5th DCA 2011). Accordingly, we reverse the summary denial of this portion of ground one and rem…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Leroux, 689 So. 2d 235 (Fla. 1996)
- Montgomery v. State, 615 So. 2d 226 (Fla. 5th DCA 1993)
- Johnson v. State, 776 So. 2d 1024 (Fla. 1st DCA 2001)
- Williams v. State, 824 So. 2d 1050 (Fla. 4th DCA 2002)
- Fisher v. State, 824 So. 2d 1050 (Fla. 3d DCA 2002)
- Perez v. State, 966 So. 2d 22 (Fla. 5th DCA 2007)
- DeMONIA v. State, 966 So. 2d 22 (Fla. 2d DCA 2007)