DERIC INGRAM

v.

STATE OF FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

DERIC INGRAM,

Appellant,

v. Case No. 5D20-102

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed February 28, 2020

3.850 Appeal from the Circuit Court for Brevard County, Nancy Maloney, Judge.

Deric Ingram, Cocoa, pro se.

No Appearance for Appellee.

LAMBERT, J.

Deric Ingram appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. Concluding that the record attachments to the postconviction court’s denial order do not conclusively refute Ingram’s sole claim for relief, we reverse and remand for further proceedings.

Ingram was on community control for possession of cocaine and was subsequently alleged to have violated certain conditions of his community control. Thereafter, Ingram and the State entered into a written plea agreement in which Ingram agreed to admit to

In a typical Quarterman agreement, the defendant agrees that if he or she does not subsequently appear for sentencing, the trial court can impose “‘any greater lawful sentence’ rather than the sentence specified in the plea agreement.” See Simmons v. State, 228 So. 3d 1181, 1183 (Fla. 2d DCA 2017). At Ingram’s change of plea hearing, the trial court granted his request for a “Quarterman’s release,” and this provision was incorporated into the plea agreement accepted by the court. Ingram’s sentencing hearing was deferred for two weeks.

Ingram arrived ninety minutes late for his sentencing. At the belated sentencing hearing held later that same day, the trial court imposed a lawful sentence, albeit one that was greater than the 300-day jail sentence contained in the original plea agreement.

Ingram timely moved for postconviction relief. He asserted that his counsel was ineffective for first failing to argue to the trial court that because his breach of the Quarterman’s agreement was not willful, the court could not impose a greater sentence than the one specified in the plea agreement and in thereafter failing to object to the court’s increased sentence, absent a finding of willfulness. See Thompson v. State, 24 So. 3d 748, 750 (Fla. 2d DCA 2009) (concluding that the defendant pled a prima facie claim of ineffective assistance of counsel in alleging that his counsel failed to make the appropriate legal objection or argument to the increased sentence imposed by the trial court when there was no finding or evidence to support a determination that the defendant

1 See Quarterman v. State, 527 So. 2d 1380 (Fla. 1988).

In summarily denying Ingram’s rule 3.850 motion, the postconviction court held that, unlike in Thompson, it did hold a hearing on Ingram’s violation of the Quarterman’s agreement. The court wrote in its order that at the prior hearing, it had found Ingram’s late arrival to the sentencing hearing to be a willful violation of the Quarterman’s agreement. It also noted in its denial order that Ingram had, in fact, testified at this hearing and that his counsel had “made arguments.”

To uphold the summary denial of a claim made under rule 3.850, it must be either legally insufficient or conclusively refuted by the record. Peede v. State, 748 So. 2d 253, 257 (Fla. 1999). When the summary denial is based on the records in the case, a copy of that portion of the files and records that conclusively show that the defendant is entitled to no relief must be attached to the final order. See Fla. R. Crim. P. 3.850(f)(5).

We find it necessary to reverse the summary denial of Ingram’s motion because the records attached by the court to its order do not conclusively refute Ingram’s claim for relief. No transcript of the evidentiary hearing held regarding Ingram’s breach of the Quarterman’s agreement was attached to the denial order that would show what Ingram’s counsel may have argued about whether his breach was willful or whether counsel objected to the court’s imposition of the greater sentence absent it making the requisite finding of willfulness. See Spear v. State, 244 So. 3d 421, 421 (Fla. 5th DCA 2018)

Accordingly, we reverse the postconviction court’s denial of Ingram’s rule 3.850 motion and remand for the court to either attach additional records to its order that conclusively refute Ingram’s claim or conduct an evidentiary hearing.

REVERSED and REMANDED for further proceedings consistent with this opinion.

EDWARDS and EISNAUGLE, JJ., concur.