ONARAY VASHON JORDAN A/K/A ONARAY VASHOM JORDAN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Defendant Jordan appeals the denial of his postconviction motion alleging he received affirmative misadvice from his trial counsel regarding gain time eligibility on his plea sentence. The court reverses and remands for an evidentiary hearing, holding that affirmative misadvice about time to be served can support postconviction relief under Florida law.
Affirmative misadvice regarding the amount of time to be served on an agreed sentence can provide a basis for postconviction relief. The court reversed the denial of the motion and remanded for an evidentiary hearing to determine both timeliness and the merits of the claim.
[1] Affirmative misadvice from trial counsel regarding the amount of time to be served on an agreed sentence can be a basis for post-conviction relief.
[2] A defendant's prior postconviction motions seeking additional credit for jail time served before sentencing do not necessarily establish that the defendant was aware of i…
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Join FLexlaw to unlock all legal intelligence“affirmative misadvice regarding the amount of time to be served on an agreed sentence can be a basis for post-conviction relief”
Establishes the legal standard under State v. Leroux that affirmative misadvice about gain time eligibility supports postconviction relief
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Join FLexlaw to unlock all legal intelligenceJordan entered a plea bargain in five 1993 cases and received a 35-year sentence as agreed. His trial counsel allegedly told him he would be eligible …
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PER CURIAM.
Onaray Vashon Jordan appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We reverse and remand for a hearing.
Defendant Jordan entered into a plea bargain with regard to five 1993 cases. He received a thirty-five-year sentence, as agreed.
Defendant-appellant Jordan alleges that he received affirmative misadvice from his trial counsel at the time he entered his plea. He states his trial counsel told him that he would be eligible for basic gain time and incentive gain time. According to the defendant, his counsel advised him that he could expect to serve about twelve years of the thirty-five-year sentence.
The defendant asserts that in October 2001, he was advised by the Department of Corrections that he was not eligible for basic gain time on one of the charges, sexual battery. See § 794.011(7), Fla. Stat. (1993). The defendant asserts that he will be required to serve all, or most, of the thirty-five year term.
The defendant has attached to his motion a memorandum he received from the Department of Corrections on October 10, 2001, advising him of this ineligibility for basic gain time. He filed his postconviction motion shortly thereafter, in January of 2002. His motion asserts that he did not previously know this information. The State argues that the defendant must have known this information at an earlier date because the defendant has previously filed postconviction motions seeking additional credit for jail time served before sentencing. We reject the State’s argument on this point. The request for additional credit for jail time served does not involve any issue regarding Department of Corrections gain time.
The Department argues that the defendant must necessarily have been given information regarding his tentative release date at an earlier time while he was in the prison system, which would have alerted him to this issue. However, there is nothing in the record before us which conclusively refutes this claim.
Under State v. Leroux, 689 So. 2d 235 (Fla.1996), affirmative misadvice regarding the amount of time to be served on an agreed sentence can be a basis for post-conviction relief. Id. at 238; see also Fisher v. State, 824 So. 2d 1050 (Fla. 3d DCA 2002); Bauder v. State, 768 So. 2d 1232 (Fla. 3d DCA 2000); Gonzales v. State, 766 So. 2d 452 (Fla. 3d DCA 2000); Carter v. State, 752 So. 2d 725 (Fla. 3d DCA 2000); Bell v. State, 746 So. 2d 515 (Fla. 3d DCA 1999); Rensoli v. State, 718 So. 2d 1278 (Fla. 3d DCA 1998).
We reverse and remand this matter for an evidentiary hearing on (1) the issue of the timeliness of the defendant’s motion, and (2) if timely, the merits of the defendant’s claim.
Reversed and remanded for further proceedings consistent herewith.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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O'Neal v. State, 860 So. 2d 456 (Fla. 1st DCA 2003)…r trial counsel’s misadvice regarding how much of the imposed sentence he would actually serve. Affirmative misadvice of counsel as to eligibility for gain time is a basis for postconviction relief, if not refuted by the record. See Jordan v. State, 833 So. 2d 266 (Fla. 3d DCA 2002); Wilson v. State, 760 So. 2d 237 (Fla. 2d DCA 2000); Little v. State, 673 So. 2d 151 (Fla. 1st DCA 1996). Accordingly, we reverse the trial court’s order and remand with instructions to either hold an evidentiary hearing or atta…
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Green v. State (Fla. 3d DCA 2023)…sively refute defendant’s allegation that, at the time of the plea, counsel affirmatively misadvised him that his State and federal sentences would run conterminously and that, but for such misadvice, he would not have pled guilty); Jordan v. State, 833 So. 2d 266 (Fla. 3d DCA 2002) (requiring evidentiary hearing where record failed to conclusively refute defendant’s claim that, at the time of the plea, counsel affirmatively misadvised him that he would be eligible for basic gain time and incentive gain tim…
Authorities Cited
- State v. Leroux, 689 So. 2d 235 (Fla. 1996)
- Rensoli v. State, 718 So. 2d 1278 (Fla. 3d DCA 1998)
- GIL v. Kloster Cruise Ltd., 746 So. 2d 515 (Fla. 3d DCA 1999)
- Carter v. State, 752 So. 2d 725 (Fla. 3d DCA 2000)
- Gonzales v. State, 766 So. 2d 452 (Fla. 3d DCA 2000)
- Williams v. State, 824 So. 2d 1050 (Fla. 4th DCA 2002)
- Fisher v. State, 824 So. 2d 1050 (Fla. 3d DCA 2002)
- Bauder v. State, 768 So. 2d 1232 (Fla. 3d DCA 2000)