JUSTIN VOSHELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Justin Voshell, convicted of three counts of armed robbery, appealed a denial of his rule 3.850 motion claiming ineffective assistance of counsel. The court found merit in his first claim that counsel promised a Youthful Offender sentence and misadvised him about sentencing consequences, reversed and remanded for an evidentiary hearing, and affirmed the second claim.
The court held that Voshell's first claim had merit and was not conclusively refuted by the trial court's attachments. The court distinguished the claim from Alcorn v. State and determined that the plea form did not conclusively refute Voshell's assertions, requiring either attachment of portions of the record that refute the claim or an evidentiary hearing. The second claim was affirmed without discussion.
[1] A claim of ineffective assistance of counsel based on misadvice regarding sentencing potential is not barred by Alcorn v. …
[2] A trial court must attach portions of the record that conclusively refute a defendant's claims or hold an evidentiary hearing when a motion for postconviction relief is f…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Alcorn applies when a defendant is claiming that counsel incorrectly advised him of the statutory maximum sentence he faced, causing him to reject a plea offer, and he later receives a harsher sentence than that which was offered. This is not the argument raised by the appellant in the instant motion.”
Establishes that the trial court misapplied Alcorn because Voshell's claim involved a promise of a specific sentence type, not merely incorrect advice about statutory maximum sentences.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceVoshell was convicted of three counts of armed robbery and received concurrent sentences of 42.5 years' imprisonment. He filed a rule 3.850 motion all…
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The appellant, convicted of three counts of armed robbery, filed a rule 3.850 motion raising two claims. We find merit in the first claim which is not conclusively refuted by the trial court’s attachments. We affirm claim two without discussion.
In the first claim the appellant asserts that counsel acted ineffectively because he promised him he would receive a Youthful Offender sentence if he entered a plea, and advised him that the court would not impose a life or even a lengthy sentence because he was a juvenile when he committed the offenses, he did not have any prior felony convictions, he did not possess the firearm during the robberies, and there were more culpable persons involved. He states that if he had been properly advised that he could receive a lengthy sentence he would not have entered an open plea but would have proceeded to trial. The trial court concurrently imposed three sentences of 42.5 years’ imprisonment.
The trial court rejected this claim after finding the appellant was arguing that counsel failed to accurately advise him of the statutory maximum sentence he faced, and therefore Alcorn v. State, 121 So.3d 419 (Fla.2013), applied, and barred the claim. Alcorn applies when a defendant is claiming that counsel incorrectly advised him of the statutory maximum sentence he faced, causing him to reject a plea offer, and he later receives a harsher sentence than that which was offered. This is not the argument raised by the appellant in the instant motion.
The plea form attached by the trial coux*t does not conclusively refute the appellant’s assertions. See Rogers v. State, 510 So.2d 1230 (Fla. 1st DCA 1987) (discussing that when a motion is facially sufficient the trial court shall attach the portion of the record that conclusively refutes the defendant’s claim or shall hold an evi-dentiary hearing on it); Alfred v. State, 998 So.2d 1197 (Fla. 4th DCA 2009) (explaining that a thorough plea colloquy conducted by the trial court which accurately sets forth maximum penalties, and during which a defendant states he understands the maximum penalties and agrees that no one had promised or advised him he would receive a lesser or specific sentence, negates any argument of misadvice by counsel).
We, therefore, reverse and remand the first claim for the trial court to either attach portions of the record that conclusively refute the assertions, or hold an evidentiary hearing.
*1091AFFIRMED in part, REVERSED and REMANDED in part.
LEWIS, WETHERELL, and MAKAR, JJ., concur.
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Voshell v. State, 187 So. 3d 370 (Fla. 1st DCA 2016)…PER CURIAM. This appeal returns to the Court following reversal and remand in Voshell v. State, 174 So. 3d 1089 (Fla. 1st DCA 2015), for the trial court to attach the portion of the record conclusively refuting Justin Vo-shell’s claim that counsel acted ineffectively by advising or assuring him that if he entered a plea the court would be lenient when sentenc…
Authorities Cited
- Alcorn v. State, 121 So. 3d 419 (Fla. 2013)
- Dorris v. State, 998 So. 2d 1197 (Fla. 2d DCA 2009)
- Makendy Alfred v. State, 998 So. 2d 1197 (Fla. 4th DCA 2009)
- Rogers v. State, 510 So. 2d 1230 (Fla. 1st DCA 1987)