COREY DENARD THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas appeals the summary denial of his Rule 3.850 postconviction motion after conviction for drug trafficking and a 30-year sentence with a 25-year mandatory minimum. The appellate court reversed the trial court's summary denial of two ineffective assistance of counsel claims regarding misadvice about gain-time eligibility and maximum possible sentence, finding these claims are cognizable grounds for relief and not conclusively refuted by the record.
Affirmative misadvice by counsel regarding gain-time eligibility and misadvice regarding the maximum possible sentence are both cognizable grounds for postconviction relief. The two claims were not conclusively refuted by the record and were not facially invalid, so summary denial was improper.
[1] A defendant may be entitled to post-conviction relief if trial counsel misadvised the defendant about the terms of a plea offer, including eligibility for gain time.
[2] A claim for post-conviction relief based on misadvice regarding a plea offer is facially sufficient if the defendant alleges they would have accepted the plea but for the…
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Join FLexlaw to unlock all legal intelligence“To uphold the trial 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.”
Establishes the legal standard for reviewing summary denial of postconviction relief motions.
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Join FLexlaw to unlock all legal intelligenceThomas was convicted by jury of trafficking in illegal drugs exceeding 28 grams but less than 30 kilograms. He was sentenced to 30 years in the Depart…
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Corey Denard Thomas (“Thomas”) appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. After a jury trial, Thomas was convicted of trafficking in illegal drugs in an amount exceeding 28 grams, but less than 30 kilograms, and was sentenced to serve 30 years in the Department of Corrections, with a 25-year minimum mandatory sentence. See § 893.135(l)(c)l.e., Fla. Stat. (2012). Thomas alleged five claims in his motion. “To uphold the trial 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.” Foster v. State, 810 So.2d 910, 914 (Fla.2002) (quoting Peede v. State, 748 So.2d 253, 257 (Fla.1999)). Furthermore, because no evidentiary hearing was held, we “must accept the defendant’s factual allegations as true to the extent they are not refuted by the record.” Occhicone v. State, 768 So.2d 1037, 1041 (Fla.2000) (citing Peede, 748 So.2d at 257).
In his first claim, Thomas averred that he rejected the State’s initial 15-year offer based on misadvice from his counsel that he would not be eligible to earn any incentive gain-time. Citing to Mastay v. McDonough, 928 So.2d 512 (Fla. 1st DCA 2006), Thomas asserts that he was eligible to earn incentive gain-time even during the service of a mandatory minimum term for drug trafficking. In his second claim, Thomas argued that he was denied effective assistance of counsel in considering whether to accept the State’s plea offers to a lesser sentence because his counsel misadvised him that the maximum sentence he could receive if convicted at trial was the 25-year minimum mandatory sentence and not the 30-year sentence later imposed.
Affirmative misadvice by counsel as to gain-time is a cognizable ground for postconviction relief. Pylant v. State, 134 So.3d 533, 534 (Fla. 5th DCA 2014). Mis-advice as to the maximum possible sentence is also a cognizable ground for post-conviction relief. Ferrara v. State, 114 So.3d 990 (Fla. 5th DCA 2012). Our review of the record reveals that these two claims are not conclusively refuted by the records attached to the order and are not facially invalid. We, therefore, reverse that part of the order under review that summarily denies claims one and two and *1086remand with instructions that the trial court either attach portions of the record that conclusively refute these claims, or grant an evidentiary hearing. In all other respects, the order is affirmed.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED.
TORPY, C.J., BERGER and LAMBERT, JJ., concur.
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Guevara v. State, 227 So. 3d 205 (Fla. 5th DCA 2017)…efore, we reverse the summary denial of Appellant’s motion on this ground and remand for an evidentiary hearing. We otherwise affirm. AFFIRMED in Part; REVERSED in Part; and REMANDED. PALMER, EDWARDS and EISNAUGLE, JJ., concur. . Thomas v. State, 162 So. 3d 1084, 1085 (Fla. 5th DCA 2015).…
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Shafer v. State (Fla. 4th DCA 2023)…s he possibly could. Appellant’s claim is facially sufficient under Alcorn, and the State in its response below conceded error by acknowledging the trial court should have conducted an evidentiary hearing to resolve the issue. See Thomas v. State, 162 So. 3d 1084, 1085 (Fla. 5th DCA 2015) (recognizing that misadvice as to gain time is a cognizable ground for collateral relief). The comments above made by appellant’s counsel below are not inconsistent with appellant’s allegations, nor do they refute his clai…
Authorities Cited
- Occhicone v. State, 768 So. 2d 1037 (Fla. 2000)
- Peede v. State, 748 So. 2d 253 (Fla. 1999)
- Foster v. State, 810 So. 2d 910 (Fla. 2002)
- Mastay v. McDONOUGH, 928 So. 2d 512 (Fla. 1st DCA 2006)
- Pylant v. State, 134 So. 3d 533 (Fla. 5th DCA 2014)
- Ferrara v. State, 114 So. 3d 990 (Fla. 5th DCA 2012)