JEFFREY DALE SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant states a facially sufficient claim of ineffective assistance of counsel if they allege attorney misadvice on sentencing exposure and that this misadvice led to a guilty plea instead of a trial.
[1] A defendant states a facially sufficient claim of ineffective assistance of counsel by alleging attorney misadvice regarding maximum sentencing exposure, coupled with an…
[2] A claim of ineffective assistance of counsel based on attorney misadvice regarding sentencing exposure cannot be summarily denied if the claim is not refuted by the recor…
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Join FLexlaw to unlock all legal intelligenceAppellant alleged his attorney misadvised him about his maximum possible sentencing exposure, leading him to plead guilty when he would have gone to t…
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Jeffrey Dale Smith appeals from an order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850 and a separate order denying an amended motion that supplemented his original motion after the trial court had issued a final order. We affirm, without comment, the postconviction court’s denial of the Appellant’s second and third claims in his original rule 3.850 motion, as well as the denial of his amended rule 3.850 motion. However, as to the appellant’s first claim in his original rule 3.850 motion, we reverse.
A defendant states a facially sufficient claim of ineffective assistance of counsel where he alleges that his attorney misad-vised him as to his maximum possible sentencing exposure and that, but for this misadvice, he would not have pled guilty, but would have insisted on going to trial. Kasper v. State, 828 So.2d 1047, 1047-48 (Fla. 1st DCA 2002). A trial court may not summarily deny such a claim unless it is refuted by the record. Id. at 1048.
In the instant case, the appellant set out a facially sufficient claim. He alleged that his attorney erroneously advised him that he faced a total possible sentence of thirty-five years in prison, when the highest possible sentence he could have received was actually twenty-five years in prison. He further asserted that, but for this misad-vice, he would not have pled guilty, but would have insisted on going to trial. As the State conceded in its response to this Court’s Toler1 order, this claim was not refuted by the records attached to the trial court’s order denying relief.
Accordingly, we reverse the trial court’s denial of the first claim in the appellant’s original rule 3.850 motion. On remand, should the trial court again conclude that appellant’s claim lacks merit, it shall attach to its order the portions of the record conclusively refuting that claim. Otherwise, it shall hold an evidentiary hearing.
AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.
WOLF, ROWE, and OSTERHAUS, JJ„ concur.
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Citator
Cited By
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Smith v. State, 214 So. 3d 703 (Fla. 1st DCA 2016)…5 years in prison, instead of just 25. Armed with the correct information, Appellant asserted that he would have insisted on going to trial. Because we found he stated a facially sufficient claim, we remanded for further proceedings. Smith v. State, 146 So. 3d 536 (Fla. 1st DCA 2014). On remand, the court heard evidence and, based on testimony from Appellant’s trial counsel, concluded that Appellant was not mi-sadvised and again denied the claim. Appellant now argues that the trial court’s conclusion lacked e…
Authorities Cited
- Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986)
- Kasper v. State, 828 So. 2d 1047 (Fla. 1st DCA 2002)