CORIAN JONES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the defendant's claim of affirmative misadvice from counsel regarding the consequences of his plea is not conclusively refuted by the record, requiring an evidentiary hearing.
The defendant sought post-conviction relief, alleging his attorney incorrectly advised him that a plea conviction would only be used as an aggravating…
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PER CURIAM.
The defendant appeals the order denying his motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for an evidentiary hearing.
The defendant claims that he should be permitted to withdraw his plea to aggravated battery and attempted armed robbery because counsel affirmatively misadvised him regarding the consequences of his plea. He asserts that counsel told him that the conviction would not be admitted as Williams rule1 evidence during the guilt phase of his upcoming murder trial and would only be admitted as an aggravating factor in the penalty phase.
We reverse and remand for an evidentiary hearing because the record does not conclusively refute the defendant’s claim of affirmative misadvice. During the plea colloquy, the trial court informed the defendant that the plea conviction could be used as an “aggravator” in his upcoming murder trial. The judge did not specifically advise the defendant that the conviction could be introduced as Williams rule evidence in the murder trial’s guilt phase. The transcript is consistent with the defendant’s assertion that counsel advised him that the plea conviction could only be used as an aggravator in the penalty phase of the first-degree murder trial.
Because the defendant’s claim of affirmative misadvice is not conclusively refuted by the record, we remand for an evidentiary hearing.
Reversed and remanded.
. Williams v. State, 110 So. 2d 654 (Fla.1959).