DOUGLAS J. LAVIGNE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lavigne appeals the trial court's summary denial of his Rule 3.850 motion for postconviction relief claiming ineffective assistance of counsel. The appellate court reverses, holding that Lavigne's allegations of deficient advice regarding plea negotiations require an evidentiary hearing rather than summary dismissal.
The trial court's summary denial was improper. Lavigne's sworn allegations that he was offered a three-year sentence in exchange for a plea to a lesser offense and was negligently advised to reject it are not conclusively refuted by the plea and sentencing transcripts, and therefore an evidentiary hearing is required under Morgan v. State.
[1] A motion for postconviction relief requires an evidentiary hearing when the State concedes that the motion necessitates one.
[2] Ineffective assistance of counsel may be established by affirmative misadvice that leads a defendant to reject a favorable plea offer.
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 contents of these two transcripts do not refute Mr. Lavigne's claim that he was offered a sentence at an earlier stage in the proceedings that was less than the minimum mandatory sentence required at the time that he went to trial.”
Establishes that the appellate record does not conclusively refute Lavigne's ineffective assistance claim, supporting the need for an evidentiary hearing.
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Join FLexlaw to unlock all legal intelligenceLavigne was charged with trafficking in methamphetamine in November 2005. Approximately six months later, the State allegedly offered a plea deal requ…
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Douglas J. Lavigne appeals the trial court’s order summarily denying his motion for postconviction relief that he filed pursuant to Florida Rule of Criminal Procedure 3.850. In the trial court, the State conceded that the motion required an evi-dentiary hearing. We agree with the State. Accordingly, we reverse and remand for further proceedings.
The State charged Mr. Lavigne with trafficking in methamphetamine in November 2005. The details of this charge are not disclosed in our record. Mr. Lavigne alleges under oath that he was brought before the court about six months after the information was filed. At that hearing the State allegedly offered to resolve the case if Mr. Lavigne agreed to a negotiated plea requiring him to serve three years’ incarceration. Mr. Lavigne claims that he did not accept the plea because his lawyer advised him to reject it and assured him that he could receive probation.
When Mr. Lavigne’s case was ready for trial, he could not pay his lawyer the additional fees associated with the trial. Accordingly, he pleaded to the charge, receiving a seven-year term of incarceration, which apparently is the minimum mandatory term for the charge. Mr. Lavigne claims his lawyer was ineffective in advis*1016ing him to reject the offer of a three-year term, only to place him in a posture where he could receive no less than a seven-year term. He claims he would have accepted the offer of three years’ imprisonment but for the affirmative misadvice of his counsel.
When the trial court first received this motion, it concluded that the record did not conclusively refute the claim and ordered the State to respond. The State responded, admitting that the record did not refute the claim. Nevertheless, the trial court apparently decided that its initial assessment of the record was incorrect. It entered an order denying the motion and attaching the transcripts of the plea hearing and the sentencing hearing.
We agree with the trial court’s initial assessment. The contents of these two transcripts do not refute Mr. Lavigne’s claim that he was offered a sentence at an earlier stage in the proceedings that was less than the minimum mandatory sentence required at the time that he went to trial. Obviously, a sentence less than the minimum mandatory would have been based on a conviction for an offense other than the offense of which Mr. Lavigne now stands convicted, but that does not rule out the possibility that the State did make such an offer. Under the guidelines contained in Morgan v. State, 991 So.2d 835 (Fla.2008), it appears that Mr. Lavigne’s case cannot be resolved without an eviden-tiary hearing.
Reversed and remanded.
FULMER and SILBERMAN, JJ., Concur.