KYLE TAPP, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kyle Tapp appealed the denial of his Rule 3.850 postconviction motion alleging ineffective assistance of counsel. The court affirmed the dismissal of most claims but reversed and remanded one claim involving counsel's failure to advise of double jeopardy protections regarding multiple fleeing charges, holding that such a claim is cognizable despite a guilty plea when the plea itself may have been involuntary.
The court held that Tapp's claim is facially sufficient and cognizable in a Rule 3.850 motion. A guilty plea does not waive the right to raise an ineffective assistance of counsel claim based on counsel's failure to advise of double jeopardy protections, because such a failure may render the plea itself involuntary.
[1] A guilty plea waives the right to raise double jeopardy claims when the plea is entered into with the State and does not claim the plea was involuntary.
[2] A claim of ineffective assistance of counsel for failing to advise of double jeopardy protection may render a guilty plea involuntary and is cognizable in a postconvictio…
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Join FLexlaw to unlock all legal intelligence“Novaton is inapplicable to an allegation of an involuntary plea due to ineffective assistance of counsel for failure to advise of the double jeopardy protection.”
Establishes the key legal distinction that allows ineffective assistance claims to proceed despite a guilty plea when the plea's voluntariness is questioned.
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Join FLexlaw to unlock all legal intelligenceTapp was convicted of three counts of fleeing or eluding. He filed a Rule 3.850 postconviction motion alleging that two of the three convictions viola…
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Kyle Tapp appeals the partial summary denial and partial dismissal of his Florida Rule of Criminal Procedure 3.850 motion. We affirm without comment the summary disposition of claims one, two, four, and *667five, but we reverse and remand as to claim three.
In claim three, Tapp alleges that his counsel was ineffective for failing to advise him that two out of his three convictions for fleeing or eluding violated the prohibition against double jeopardy. He contends that the facts alleged in the information arose from the same criminal act or transaction and that but for counsel’s ineffectiveness, he would have gone to trial instead of pleading guilty.
Citing Novaton v. State, 634 So.2d 607 (Fla.1994), the postconviction court summarily denied the claim, finding that by pleading guilty, Tapp “accepted the charges and waived his right to raise double jeopardy claims with respect to those charges.” See Novaton, 634 So.2d at 609 (holding that a defendant who enters into a plea bargain with the State waives “any double jeopardy claim that may affect either his convictions or his sentences”). However, in Weitz v. State, 795 So.2d 1021, 1023 (Fla. 2d DCA 2001), this court held that Novaton is inapplicable to an allegation of an involuntary plea due to ineffective assistance of counsel for failure to advise of the double jeopardy protection. Unlike Weitz, Novaton “ ‘neither requested] that the agreement be vacated nor claim[ed] that it was invalid because it was not voluntarily and intelligently entered into.’ ” Weitz, 795 So.2d at 1022 (quoting Novaton, 634 So.2d at 609). Therefore, Tapp raises a facially sufficient claim that is cognizable in a rule 3.850 postconviction motion. See Flores-Vega v. State, 22 So.3d 721, 724 (Fla. 2d DCA 2009); Weitz, 795 So.2d at 1022-23.
Because Tapp’s allegation is not refuted by the record, we reverse and remand as to ground three. On remand, the postcon-viction court should either attach records refuting the allegation to its denial order or hold an evidentiary hearing. We affirm as to Tapp’s other claims without comment.
Affirmed in part, reversed in part, and remanded.
DAVIS and LAROSE, JJ„ concur.
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Rogers v. State, 113 So. 3d 960 (Fla. 2d DCA 2013)…607, 609 (Fla.1994). However, as Rogers pointed out in his motion for rehearing and brief, Novaton does not preclude a double jeopardy attack framed as a claim of ineffective assistance of counsel resulting in an involuntary plea. See Tapp v. State, 44 So. 3d 666, 667 (Fla. 2d DCA 2010). The postconviction court also relied on the record in denying this claim. Specifically, this issue was raised by Rogers’ counsel at the plea hearing, at which time the State explained that the felonious possession charge in…
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Clodis Kiwan Thomas v. State, 117 So. 3d 1191 (Fla. 2d DCA 2013)…aring. See Peede v. State, 748 So. 2d 253, 257 (Fla.1999) (“To uphold the [postconviction] court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.”); Tapp v. State, 44 So. 3d 666, 667 (Fla. 2d DCA 2010) (reversing summary denial of claim made in rule 3.850 motion and remanding for postconviction court to either [*1196] attach records refuting claim or to hold an evidentiary hearing). Conclusion We conclude that based on th…
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Kidder v. State, 216 So. 3d 44 (Fla. 2d DCA 2017)…. State, 634 So. 2d 607, 609 (Fla. 1994). Accordingly, we affirm Mr. Kidder’s judgment and sentences without prejudice to any right he may have to pursue a claim for postconviction, relief related to the double jeopardy violation. See Tapp v. State, 44 So. 3d 666, 667 (Fla. 2d DCA 2010); Weitz v. State, 795 So. 2d 1021, 1022-23 (Fla. 2d DCA 2001). We caution Mr. Kidder that such relief would result in the loss of the benefit of his plea bargain. Affirmed. MORRIS and CRENSHAW, JJ., Concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Novaton v. State, 634 So. 2d 607 (Fla. 1994)
- Weitz v. State, 795 So. 2d 1021 (Fla. 2d DCA 2001)
- Flores-Vega v. State, 22 So. 3d 721 (Fla. 2d DCA 2009)