GEORGE WILBER AGENT, III, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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George Agent challenged the summary denial of his postconviction motion alleging that his defense counsel promised him a youthful offender sentence in exchange for his no contest plea to carjacking. The appellate court reversed and remanded, finding the trial court's summary denial improper because the record did not conclusively refute Agent's claim, and the motion was facially insufficient but should have been struck with leave to amend.
The appellate court reversed the summary denial because the sentencing hearing transcript did not conclusively refute Agent's claim—the record showed Agent entered his plea before being made aware of the sentence. The court also found the motion facially insufficient for failing to request plea withdrawal or allege he would not have pleaded absent counsel's promise, but held it should have been struck with leave to amend rather than summarily denied.
[1] A postconviction court's summary denial of a motion is reversible when the record attachments do not conclusively refute the defendant's claim.
[2] A claim that a plea was involuntary due to counsel's promise of a youthful offender sanction is not conclusively refuted if the sentencing transcript shows the defendant…
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Join FLexlaw to unlock all legal intelligence“It is clear from the transcript that Agent entered his plea before he was made aware that he would receive a ten-year sentence. Because Agent's claim is not conclusively refuted by the postconvietion court's record attachments, we must reverse the summary denial of his rule 3.850 motion.”
Establishes that the sentencing transcript did not support the trial court's conclusion and therefore did not conclusively refute Agent's allegation, requiring reversal of summary denial.
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Join FLexlaw to unlock all legal intelligenceIn June 2006, Agent entered an open no contest plea to carjacking with possession of a firearm and was sentenced to ten years' imprisonment. In June 2…
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George W. Agent, pro se, challenges the summary denial of his postconviction motion, which he filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.
In 2006, Agent entered an open no contest plea to carjacking with possession of a firearm, and the trial court sentenced him to ten years’ imprisonment in June 2006.1 He then filed his rule 3.850 motion in June 2008. The sole allegation raised in that motion was phrased as follows: “Whether defense counsel promised defendant that he would receive youthful offender sanction, rather than adult sanctions, in exchange for his plea.” The postconviction court summarily denied this claim, attaching a copy of the sentencing hearing transcript and concluding as follows:
Defendant was present when the court explained that he would not receive a youthful offender sentence, and having been so advised Defendant entered his plea. Accordingly, Defendant’s claim that his plea was involuntary is conclusively refuted, because after being informed by the Court that he would not be sentenced as a youthful offender, Defendant still chose to enter his plea.
*1115The transcript of the sentencing hearing, however, does not support this conclusion. It is clear from the transcript that Agent entered his plea before he was made aware that he would receive a ten-year sentence. Because Agent’s claim is not conclusively refuted by the postconvietion court’s record attachments, we must reverse the summary denial of his rule 3.850 motion.
However, our review of the record also indicates that Agent’s rule 3.850 motion was facially insufficient because it does not include an affirmative request to withdraw the plea, nor does Agent allege that he would not have entered his plea absent counsel’s promise that he would receive a youthful offender sentence. See Warner v. State, 916 So.2d 879, 881 (Fla. 2d DCA 2005) (“In his postconviction motion, he failed to request that his plea ... be vacated or to allege that he would not have agreed to the plea ... had he known about the double jeopardy violation. This omission renders his claims facially insufficient.”). Accordingly, the postconviction court should have stricken Agent’s facially insufficient claim but, pursuant to Spera v. State, 971 So.2d 754 (Fla.2007), given him at least one opportunity to amend the motion.
We therefore reverse the summary denial of Agent’s rule 3.850 motion and remand the case to the postconviction court with instructions to strike the claim with leave to amend within a specific reasonable period of time as set forth in Spera. See Howard v. State, 17 So.3d 774 (Fla. 2d DCA 2009).
Reversed and remanded.
CASANUEVA, C.J., and FULMER, J., Concur.
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McDONALD v. State, 35 So. 3d 169 (Fla. 2d DCA 2010)…d to trial. The postconviction court should not have reached the merits of McDonald’s claim but instead should have stricken the claim and given McDonald an opportunity to amend it within a reasonable and specific period of time. See Agent v. State, 19 So. 3d 1114, 1115 (Fla. 2d DCA 2009). Accordingly, we affirm the denial of McDonald’s second claim but reverse the denial of his first claim. On remand, the postconviction court must first allow McDonald to amend his motion to allege a facially sufficient clai…
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Hartshorn v. State, 333 So. 3d 344 (Fla. 2d DCA 2023)…irmative misadvice regarding the lowest permissible sentence, but demanding his sentence be modified, warranted the motion being stricken as facially insufficient with leave to amend to include a request to withdraw the plea) (citing Agent v. State, 19 So. 3d 1114, 1115 (Fla. 2d DCA 2009))). Therefore, we reverse the postconviction court's order and remand with directions to strike Hartshorn's motion with leave to amend. See Fla. R. Crim. P. 3.850(f)(2). If Hartshorn amends his motion and seeks to withdraw…
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Wigfals v. State, 29 So. 3d 1198 (Fla. 2d DCA 2010)…understood the consequences of habitualization). Therefore, the postconviction court should not have reached the merits of Wigfals’s claim, but instead should have stricken the motion and given Wigfals an opportunity to amend it. See Agent v. State, 19 So. 3d 1114, 1115 (Fla. 2d DCA 2009) (citing Spera v. State, 971 So. 2d 754 (Fla.2007)). To summarize, we reverse and remand for further proceedings. On remand, the postconviction court must first allow Wig-fals an opportunity to amend his pleading to allege a…
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
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Warner v. State, 916 So. 2d 879 (Fla. 2d DCA 2005)
- Howard v. State, 17 So. 3d 774 (Fla. 2d DCA 2009)