ROGER R. LAMKIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Roger Lamkin appeals the summary denial of his Rule 3.850 postconviction motion asserting five claims of ineffective assistance of counsel. The court affirms four claims but reverses and remands claim two regarding alleged counsel misadvicements about sentencing in a probation violation proceeding, finding the record does not conclusively refute the allegation.
The court reverses and remands claim two because the record does not conclusively refute the allegation that counsel misadvised Lamkin regarding the sentence he would receive. Although the court informed Lamkin of the possible maximum sentence, it did not specifically address that he could face the statutory maximum for an open plea or what sentence would actually be imposed.
[1] A claim of ineffective assistance of counsel based on misadvice about the length of a potential sentence is facially sufficient.
[2] A court's general statements during a plea colloquy that it makes no promises as to sentencing are insufficient to conclusively refute a defendant's allegation of specifi…
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Join FLexlaw to unlock all legal intelligence“A claim that counsel misadvised about the length of a sentence is a facially sufficient claim, but it may be summarily denied if the record conclusively refutes the allegations.”
Establishes the legal standard for reviewing counsel misadvice claims on summary denial.
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Join FLexlaw to unlock all legal intelligenceLamkin admitted to a violation of probation. His defense counsel allegedly advised him that the court had agreed to reinstate his probation with an ad…
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Roger Lamkin appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. After carefully considering all five claims asserted by Appellant, we affirm as to all except for claim two, which is not conclusively refuted by the records attached to the postconviction court’s order.
Appellant asserts in claim two that defense counsel provided ineffective assistance with regard to Appellant’s admitted violation of probation. Appellant alleged that his attorney advised him that the court had agreed to reinstate his probation with an additional condition that Appellant would be required to participate in mental health treatment. Appellant claims that counsel then advised him to enter an open plea to the court, which he did. There were no offers from the State. At the violation of probation hearing, the court did not advise of a specific sentence. During the sentencing hearing, the court informed Appellant that he faced a maximum of forty years in prison for all the charges, and Appellant indicated he understood and wished to make an open plea to the court. The court imposed a sentence of thirty-five years’ incarceration, instead of reinstating Appellant’s probation.
A claim that counsel misadvised about the length of a sentence is a facially sufficient claim, but it may be summarily denied if the record conclusively refutes the allegations. See State v. Leroux, 689 So.2d 235, 236 (Fla. 1996). The court’s express statements during the plea colloquy that it makes no promises as to the sentence, that it could sentence the defendant up to the statutory maximum, or that the defendant may serve every day of the sentence can refute a defendant’s claims that, under the advice of counsel, the defendant entered a plea believing he would receive a particular sentence or that he would get certain gain time. Id. at 238. However, “a [court’s] general question about promises made in exchange for a plea is insufficient to refute an allegation of specific misadviee by counsel about the length of a sentence.” Collazo v. State, 8 So.3d 1273, 1274 (Fla. 5th DCA 2009).
Although the court informed Appellant of the possible maximum sentence he could receive, the court did not mention that Appellant could face up to the maximum *642term of imprisonment by pleading open to the court, and there was no discussion of what sentence would actually be imposed. Because the records attached to the order of summary denial do not conclusively refute claim two, we reverse for the postcon-viction court to either attach appropriate records or conduct an evidentiary hearing on that claim of affirmative misadvice as to the sentence that would be imposed for the violation of probation.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.
COHEN, C.J., BERGER, and EDWARDS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Dontrevius Byron v. State, 241 So. 3d 271 (Fla. 5th DCA 2018)…about promises made in exchange for a plea is insufficient to refute an allegation of specific misadvice by counsel about the length of a sentence." Collazo v. State, 8 So. 3d 1273, 1274 (Fla. 5th DCA 2009) (citations omitted); see Lamkin v. State, 215 So. 3d 640, 641 (Fla. 5th DCA 2017) ; Ostane v. State, 73 So. 3d 335, 335 (Fla. 5th DCA 2011). Accordingly, we reverse the summary denial of this portion of ground one and remand for the postconviction court to either attach additional portions of the record t…
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Santiago v. State, 252 So. 3d 421 (Fla. 5th DCA 2018)…n plea to the court, Appellant was sentenced to ten years in prison. The records attached to the order do not conclusively refute the claim of affirmative misadvice. See Byron v. State , 241 So. 3d 271, 271-72 (Fla. 5th DCA 2018) ; Lamkin v. State , 215 So. 3d 640, 641 (Fla. 5th DCA 2017). Accordingly, we reverse the denial of the affirmative misadvice claim with instructions for the postconviction court to either conduct an evidentiary hearing or attach records that conclusively refute that claim. After car…
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Dontrevius Byron v. State (Fla. 5th DCA 2018)…ut promises made in exchange for a plea is insufficient to refute an allegation of specific misadvice by counsel about the length of a sentence." Collazo v. State, 8 So. 3d 1273, 1274 (Fla. 5th DCA 2009) (citations omitted); see Lamkin v. State, 215 So. 3d 640, 641 (Fla. 5th DCA 2017); Ostane v. State, 73 So. 3d 335, 335 (Fla. 5th DCA 2011). Accordingly, we reverse the summary denial of this portion of ground one and remand for the postconviction court to either attach additional portions of the record…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Leroux, 689 So. 2d 235 (Fla. 1996)
- Collazo v. State, 8 So. 3d 1273 (Fla. 5th DCA 2009)