ELVIN B. SIMPSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Simpson's post-conviction motion for ineffective assistance of counsel based on attorney's misrepresentation of sentence exposure was remanded for evidentiary hearing, as the trial court erred in denying relief solely because Simpson did not appeal the departure sentence.
An evidentiary hearing is required when a defendant alleges his attorney misrepresented his sentence exposure and claims he would have accepted a plea offer had he been properly advised.
[1] Failure to appeal a guidelines departure sentence does not bar a post-conviction claim of ineffective assistance of counsel based on attorney misrepresentation of sentenc…
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Join FLexlaw to unlock all legal intelligence“Don't believe rumors, the most you can get is the guidelines.”
Simpson's attorney's response when Simpson asked about rumors that the State was seeking a life sentence.
Simpson was told by his attorney that the maximum sentence he could receive was 17-25 years, but he was ultimately sentenced to life imprisonment as a…
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GRIFFIN, J.
Elvin Simpson [“Simpson”] appeals the order of the Brevard County Circuit Court denying his motion for post-conviction relief. We affirm as to all issues save one.
Simpson alleged in his 3.850 motion that he was informed by a friend, Charles Pine, that the State was seeking to have him sentenced for life but when he asked his attorney about it, his attorney responded, “Don’t believe rumors, the most you can get is the guidelines.” Simpson attached affidavits from Bruce and Sharon Pine averring that “Mr. Green at no time indicated the possibility of Mr. Simpson receiving a sentence of natural life in prison if he were found guilty. He did tell me the sentence would be 17-25 years.” Simpson received a guidelines departure sentence of life in prison. Simpson alleged that if he had been properly advised of his sentence exposure, he would have taken the tendered plea offer of thirteen years. The lower court denied the claim because Simpson did not appeal the departure. We do not see this as a bar; in fact, if the departure were unassailable on appeal, it may add weight to Simpson’s claim that he was prejudicially misadvised. An evidentiary hearing is required to ascertain the facts and the legal effect of those facts. See e.g., Garcia v. State, 736 So. 2d 89 (Fla. 4th DCA 1999).
AFFIRMED in part; REVERSED in part.
ANTOON, C.J., and W. SHARP, J., concur.
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Citator
Cited By
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Cutuli v. State, 832 So. 2d 164 (Fla. 5th DCA 2002)…receive. See Fla. R.Crim. P. 3.172(c)(1). Thus, we conclude that this claim also requires an evidentary hearing: See Wilson v. State, 593 So. 2d 1216 (Fla. 2d DCA 1992); see also Parks v. State, 814 So. 2d 1135 (Fla. 5th DCA 2002); Simpson v. State, 741 So. 2d 1241 (Fla. 5th DCA 1999); Swain v. State, 699 So. 2d 318 (Fla. 1st DCA 1997). The order denying postconviction relief is reversed in part and remanded for an evidentiary hearing on the two grounds discussed above. We affirm the order denying relief as t…
Authorities Cited
- Garcia v. State, 736 So. 2d 89 (Fla. 4th DCA 1999)