JUSTIN VOSHELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Justin Voshell appeals his armed robbery conviction, claiming his trial counsel ineffectively advised him that he would receive a lenient or Youthful Offender sentence if he pleaded guilty, but he instead received three concurrent 42.5-year sentences. The appellate court reverses and remands for an evidentiary hearing because the plea colloquy does not conclusively refute his ineffective assistance claim.
The court reverses and remands because the plea colloquy does not conclusively refute Voshell's allegations that counsel misadvised him about sentencing. A general inquiry into whether he was promised anything is insufficient to conclusively rebut his specific claim that counsel assured him of leniency or a Youthful Offender sentence. An evidentiary hearing is required.
[1] A plea colloquy that only generally inquires whether anyone threatened, coerced, intimidated, or promised a defendant anything does not conclusively refute a claim of ine…
[2] A claim of ineffective assistance of counsel based on misadvice regarding sentencing is not conclusively refuted by a plea colloquy or written plea agreement if the evide…
Previewing 2 of 3 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“Rule 3.850 explicitly requires that the record 'conclusively' rebut an otherwise cognizable claim if it is to be denied without a hearing.”
Establishes the legal standard for denying ineffective assistance claims without an evidentiary hearing
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Join FLexlaw to unlock all legal intelligenceVoshell was charged with armed robbery. His counsel allegedly assured him that if he entered a plea, the court would be lenient and impose either a Yo…
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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 sentencing him, and would impose a Youthful Offender sentence, for his armed robbery charges, or, in the least, would not impose lengthy sentences. Appellant entered a plea and the court imposed three concurrent terms of 42.5 years’ imprisonment.
The attached plea colloquy transcript indicates the trial court conducted only a general inquiry into whether “anybody” had “threatened, coerced, intimidated” or “promised” Appellant “anything[.]” This questioning does not conclusively refute his. assertions. See State v. Leroux, 689 So.2d 235, 237 (Fla.1996) (“Rule 3.850 explicitly requires that , the. record ‘conclusively’ rebut an otherwise cognizable claim if it is to be denied without a hearing. Here, we must. agree with the district court that it cannot be said that respondent’s allegations of the misadvice of counsel are ‘conclusively’ refuted by the plea colloquy. While the plea colloquy may appear to be some evidence .contrary to defendant’s claim, it is not so clear or so inconsistent with the claim so as to ‘conclusively1 rebut it.”); Delice v. State, 103 So.3d 262 (Fla. 5th DCA 2012) (citing Le-roux to support its conclusion that the written plea agreement, which stated that there was “no dispositional understanding[,]”[ *] did not conclusively refute Del-ice’s claim that counsel had assured him he would receive a sentence of only 10 years, when the court imposed a 15-year sentence, because it was only a general ac-knowledgement that he was not promised anything to plead guilty).
We therefore reverse and remand for the trial court to appoint counsel to represent Appellant and to conduct an eviden-tiary hearing on this claim.
REVERSED AND REMANDED..
ROBERTS, C.J., SWANSON, and KELSEY, JJ., concur.
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Citator
Cited By
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Tubbs v. State, 229 So. 3d 1256 (Fla. 1st DCA 2017)…dge regarding the voluntariness of the plea asked after the side-bar—“Has anybody threatened you or coerced you or promised you anything to get you to do this?”—do not conclusively refute Mr. Tubbs’ coercion allegations. See, e.g., Voshell v. State, 187 So. 3d 370, 371 (Fla. 1st DCA 2016) (“The attached plea colloquy transcript indicates the trial court conducted only a general inquiry into whether ‘anybody’ had ‘threatened, coerced, intimidated’ or ‘promised’ Appellant ‘anything])]’ This questioning does not…
Authorities Cited
- State v. Leroux, 689 So. 2d 235 (Fla. 1996)
- Wisner Delice v. State, 103 So. 3d 262 (Fla. 5th DCA 2012)
- Voshell v. State, 174 So. 3d 1089 (Fla. 1st DCA 2015)