RANDALL SCOTT HODGES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2013-02-22
No. 2D12-209
DAVIS and VILLANTI, JJ., Concur.
107 So. 3d 538 Florida District Court of Appeal, Second District (2013) Positive Treatment
Cited by 2 cases

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Synopsis

Randall Scott Hodges appealed the dismissal of his Rule 3.850 postconviction relief motion. The court affirmed the dismissal of amended claims two and six but reversed the dismissal of the original motion, finding that ground nine—alleging the trial court failed to establish a factual basis for his no contest plea—stated a facially sufficient claim for postconviction relief that warranted an evidentiary hearing or record review.


Holding

The court held that when a movant alleges the trial court failed to determine a factual basis for a plea and claims innocence or that he pleaded to the wrong offense, he states a facially sufficient claim for postconviction relief. Because the probable cause affidavits were not in the record, the postconviction court could not conclusively refute Hodges' allegation, requiring remand for either production of conclusive records or an evidentiary hearing.


Headnotes

[1] A motion to withdraw an amended motion for postconviction relief may be granted, but the original motion may still be subject to appellate review if the movant did not in…

[2] A claim that a trial court failed to determine a factual basis for a plea is facially sufficient for postconviction relief when the movant alleges innocence or that they…

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Key Quotes

“When a movant alleges that the trial court failed to determine that there was a factual basis for his plea and that he is innocent of the offense to which he pleaded or that he pleaded to the wrong offense, the movant sets forth a facially sufficient claim for postconviction relief.”

Establishes the standard for cognizable postconviction claims based on failure to establish factual basis for plea

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Facts & Procedural History

Hodges pleaded no contest to ten counts of grand theft, one count of dealing in stolen property, one count of tampering with physical evidence, twenty…

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Opinion of the Court
KHOUZAM, Judge.

KHOUZAM, Judge.

Randall Scott Hodges appeals the final order entered on August 21, 2012, that granted his motion to withdraw his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850 and that summarily dismissed his motion and his amended motion. At first blush it may appear that Mr. Hodges received the relief he requested; however, from our review of the record, it is clear that Mr. Hodges intended to withdraw only his amended motion addressing claims two and six. We hereby affirm the postconviction court’s order granting his motion to withdraw those claims and dismissing his amended motion. But because Mr. Hodges had no intention of waiving appellate review of the January 15, 2011, order summarily denying claims one, three, four, five, seven, eight, nine, ten, eleven, and twelve, we reverse the final order to the extent that it dismisses his original motion. Accordingly, in this appeal we review the denial of Mr. Hodges’ claims in the order of January 15, 2011, and affirm the denial of all claims except ground nine.

In exchange for pleading no contest to ten counts of grand theft, one count of dealing in stolen property, one count of tampering with physical evidence, twenty-five counts of burglary of a conveyance, two counts of burglary of a dwelling, and eight counts of petit theft and for his admission to violating his probation, the State agreed to a total sentence of ten years’ imprisonment followed by ten years’ probation. The State also agreed not to file charges against Mr. Hodges in two other cases.

Mr. Hodges thereafter filed a rule 3.850 motion for postconviction relief raising twelve grounds. We affirm without discussion all claims except ground nine. In ground nine of his motion, Mr. Hodges argued that his plea was involuntary because the trial court failed to determine a factual basis for his plea. Acknowledging that the parties stipulated to a factual basis, he pointed out that “[a] stipulation with no factual basis in the record is insufficient.” Young v. State, 935 So.2d 1263, 1268 (Fla. 2d DCA 2006); see also Koenig v. State, 597 So.2d 256, 258 (Fla.1992) (“Prior to accepting a plea of no contest, the trial judge must receive in the record factual information to establish the offense *540to which the defendant has entered his plea.”). Mr. Hodges alleged that he could not be found guilty of his offenses because there is no evidence that he committed any of the crimes. The postconviction court denied this claim on the ground that it should have been raised at trial or on direct appeal. This was error.

When a movant alleges that the trial court failed to determine that there was a factual basis for his plea and that he is innocent of the offense to which he pleaded or that he pleaded to the wrong offense, the movant sets forth a facially sufficient claim for postconviction relief. See Sherwood v. State, 734 So.2d 1050, 1051 (Fla. 1st DCA 1998); cf. State v. Fox, 659 So.2d 1324, 1327-28 (Fla. 3d DCA 1995). Here, we are not able to determine whether a factual basis for the plea was taken. It appears that Mr. Hodges stipulated to the facts of all of the offenses with which he was charged.1 He responded affirmatively when asked whether his attorney had reviewed with him “every single one” of the probable cause affidavits. However, because the probable cause affidavits are not in the record, the postcon-viction court’s order does not refute Mr. Hodges’ facially sufficient claim. See Farran v. State, 694 So.2d 877, 878 (Fla. 2d DCA 1997). Therefore, we reverse the denial of ground nine and remand for the postconviction court to either attach the portions of the record that conclusively refute Mr. Hodges’ allegation or to hold an evidentiary hearing on the issue of whether there was a factual basis for the plea.

Reversed and remanded with directions.

DAVIS and VILLANTI, JJ., Concur.


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Citator

Cited By

  • Ladarius Lekendric Lacey v. State, 114 So. 3d 452 (Fla. 4th DCA 2013)
    …Stat. (2010).1 In this case, appellant’s escape was plainly controlled by section 985.721, Flori [*454] da Statutes (2010), and therefore, appellant would be entitled to postconviction relief for pleading to the wrong offense. See Hodges v. State, 107 So. 3d 538, 540 (Fla. 2d DCA 2013) (“When a movant alleges that the trial court failed to determine that there was a factual basis for his plea and that he is innocent of the offense to which he pleaded or that he pleaded to the wrong offense, the movant sets…

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