DARA OSTANE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the plea colloquy did not conclusively refute the defendant's claim that his attorney promised a specific sentence, requiring an evidentiary hearing.
The defendant pleaded no contest to manslaughter based on his attorney's alleged promise of a ten-year sentence. The trial court sentenced him to thir…
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Dara Ostane appeals the summary denial of his motion for postconviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. Ostane claims that defense counsel advised him if he pled no contest to the lesser-included offense of manslaughter, he would receive a ten-year sentence. Accordingly, Ostane pled no contest to the offense of manslaughter, subject to a firearm enhancement, and agreed to “serve a term of prison and/or probation to be determined after an evi-dentiary hearing before the [c]ourt.”
It is undisputed that, at the plea hearing, the trial court and the State reiterated that Ostane faced a maximum penalty of thirty years in the Department of Corrections (“DOC”), and the bottom of the guidelines range was 11.75 years. The transcript demonstrates defense counsel believed the' bottom of the guidelines range was 10.4 years. At sentencing, the trial court sentenced Ostane to thirty years in the DOC with five years suspended upon his successful completion of five years’ probation. The court made no inquiry into whether promises were made regarding the sentence.
The plea colloquy and attachments do not conclusively refute Ostane’s claim that defense counsel promised him a ten-year maximum sentence in the DOC. See Johnson v. State, 757 So.2d 586, 587 (Fla. 2d DCA 2000) (“[defendant’s] awareness of the maximum sentence he faced does not vitiate his claim that his attorney had assured him that his actual sentence would be much less than the maximum.”). Accordingly, because the transcript does not conclusively refute Ostane’s claim, we reverse and remand for an evidentiary hearing.
AFFIRMED in part; REVERSED in part; REMANDED.
SAWAYA, EVANDER and COHEN, JJ., concur.
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Cited By
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Dontrevius Byron v. State, 241 So. 3d 271 (Fla. 5th DCA 2018)…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 remand for the postconviction court to either attach additional portions of the record that conclusively refute the claim or hold an evidentiary h…
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Dontrevius Byron v. State (Fla. 5th DCA 2018)…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 remand for the postconviction court to either attach additional portions of the record that conclusively refute the claim or hold an evidentiar…
Authorities Cited
- Johnson v. State, 757 So. 2d 586 (Fla. 2d DCA 2000)