IVAN H. SILVERSTEIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trial court's summary denial of Rule 3.850 motion to vacate conviction was reversed because newly discovered evidence (corrected driving record) raised a genuine issue of material fact regarding whether appellant pled guilty to a felony that could not have occurred as a matter of law due to ineffective assistance of counsel.
A trial court may not summarily deny a Rule 3.850 motion when the record does not conclusively show the movant is entitled to no relief, particularly where new evidence suggests ineffective assistance of counsel resulted in a guilty plea to a legally impossible offense.
[1] A trial court may not summarily deny a Rule 3.850 motion to vacate conviction when the record does not conclusively show the movant is entitled to no relief, and newly di…
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Join FLexlaw to unlock all legal intelligenceAppellant Silverstein sought to vacate his conviction via Rule 3.850 motion, attaching a corrected driving record from DHSMV that did not exist when h…
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PER CURIAM.
The trial court summarily denied appellant’s rule 3.850 motion to vacate his conviction as untimely. Appellant had attached new evidence to his motion in the form of a corrected driving record issued by the DHSMV that did not exist at the time he entered his plea.1 See Silverstein v. State, 964 So. 2d 867 (Fla. 4th DCA 2007).
Because the record attached by the trial court does not conclusively show that appellant is entitled to no relief, the trial court’s summary denial of appellant’s rule 3.850 motion is reversed, and this case is remanded for an evidentiary hearing at which the trial court shall determine whether, as a result of ineffective assistance of counsel, appellant pled guilty to a felony that could not have occurred as a matter of law, resulting in a manifest injustice. Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); State v. McBride, 848 So. 2d 287, 291-92 (Fla.2003); Ross v. State, 901 So. 2d 252, 254 (Fla. 4th DCA 2005); Hunt v. State, 922 So. 2d 452, 453 (Fla. 4th DCA 2006); Adams v. State, 957 So. 2d 1183, 1186-87 (Fla. 3d DCA 2006).
Reversed and remanded.
SHAHOOD, C.J., KLEIN and MAY, JJ., concur. . This is the third time appellant has raised this issue in post-conviction motions. The first time was less than two years after he had entered his plea, but this court did not reach the issue, because he was no longer imprisoned for that offense and had not yet been sentenced to a greater sentence for a subsequent conviction based on points added for that offense. Silverstein v. State, 937 So. 2d 137 (Fla. 4th DCA 2006).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Miller v. State, 988 So. 2d 138 (Fla. 1st DCA 2008)…ccurred, fundamental error occurs. Error is.fundamental in nature where a manifest injustice would otherwise occur; a manifest injustice includes convicting appellant “for an offense for which he could not have been convicted.” Silverstein v. State, 985 So. 2d 635 (Fla. 4th DCA 2008); see also Sherwood v. State, 734 So. 2d 1050 (Fla. 1st DCA 1998); Dydek v. State, 400 So. 2d 1255 (Fla. 2d DCA 1981); Waugh v. State, 388 So. 2d 253, 254 (Fla. 2d DCA 1980). Judge Allen relies on Novaton v. State, 634 So. 2d 607…
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Haliburton v. State, 7 So. 3d 601 (Fla. 4th DCA 2009)…. 2d 576, 577 (Fla. 1st DCA 1999) (violation of the prohibition against double jeopardy). In this postconviction context, the inquiry focuses on whether a manifest injustice will occur if the error is not corrected. See, e.g., Silverstein v. State, 985 So. 2d 635 (Fla. 4th DCA 2008); Miller v. State, 988 So. 2d 138, 139 (Fla. 1st DCA 2008) (explaining that fundamental error and a manifest injustice result when a defendant is convicted of an offense for which the defendant could not have been convicted as a m…
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Melvin v. State, 141 So. 3d 592 (Fla. 4th DCA 2014)…, if any exist, refuting the claim that trial counsel acted ineffectively in allowing appellant to plead no contest to a charge not supported by an adequate factual basis. See Harris v. State, 32 So. 3d 197 (Fla. 4th DCA 2010); Silverstein v. State, 985 So. 2d 635 (Fla. 4th DCA 2008); see also State v. Tucker, 761 So. 2d 1248, 1249 (Fla. 2d DCA 2000) (in DWLSR prosecution under section 322.34, actual physical control is an element of the offense); State v. Bostick, 751 So. 2d 780, 780 (Fla. 5th DCA 2000) (sam…
Authorities Cited
- State v. Antoine L. McBRIDE, 848 So. 2d 287 (Fla. 2003)
- Bousley v. United States, 523 U.S. 614 (U.S. 1998)
- Adams v. State, 957 So. 2d 1183 (Fla. 3d DCA 2006)
- Ross v. State, 901 So. 2d 252 (Fla. 4th DCA 2005)
- Hunt v. State, 922 So. 2d 452 (Fla. 4th DCA 2006)
- Silverstein v. State, 964 So. 2d 867 (Fla. 4th DCA 2007)