WISNER DELICE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Delice appealed the summary denial of his Rule 3.850 postconviction motion alleging his attorney misrepresented the sentence he would receive if he pleaded no contest to a probation violation. The appellate court reversed the summary denial, finding the trial court's reliance on a written plea agreement's 'no dispositional understanding' clause was insufficient to conclusively rebut Delice's sworn allegations, and remanded for proper consideration of the facially insufficient motion.
A general acknowledgment in a written plea agreement that there was no dispositional understanding is insufficient to conclusively rebut a sworn allegation that an attorney misrepresented the sentence to induce a guilty plea. The trial court erred in summarily denying the motion without an evidentiary hearing or review of the complete plea colloquy transcript.
[1] A written plea agreement provision stating "no dispositional understanding" is insufficient to conclusively rebut a defendant's sworn allegation that their attorney misre…
[2] To sufficiently allege prejudice in a claim of attorney misrepresentation regarding a plea, a defendant must aver that they would not have entered the plea but for the mi…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“This provision of the written plea agreement was insufficient to conclusively rebut Delice's claim.”
Establishes that a general 'no dispositional understanding' clause in a plea agreement cannot alone defeat allegations of attorney misrepresentation regarding sentence.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDelice was sentenced on September 11, 2007, to 359 days incarceration plus ten years probation for sexual battery. On August 22, 2008, he pled no cont…
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Deliee appeals from the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Only one of the issues raised by Delice has merit.
On September 11, 2007, Delice was sentenced on a sexual battery charge to 359 days incarceration, with credit for time served, followed by ten years probation. On August 22, 2008, Delice pled no contest *263to violating the terms of his probation and was sentenced to fifteen years imprisonment. In his amended 3.850 motion, Del-ice alleged that his attorney had misled, coerced, and threatened him to plead to the violation of probation charge by assuring him that he would receive a sentence of only ten years in prison.
In summarily denying his claim, the trial court relied on Delice’s written plea agreement that provided that there was “no dispositional understanding.”1 This provision of the written plea agreement was insufficient to conclusively rebut Delice’s claim. See State v. Leroux, 689 So.2d 235, 236-38 (Fla.1996) (general ac-knowledgement that defendant was not promised anything to plead guilty fails to conclusively refute sworn allegation that defendant was prompted to enter plea by attorney’s misrepresentation regarding length of sentence); Faires v. State, 995 So.2d 1074, 1074 (Fla. 5th DCA 2008) (written plea form insufficient to conclusively refute claim that defendant prompted to enter plea by attorney’s misrepresentation regarding length of sentence; no transcript of plea colloquy attached to trial court’s order).
Although we are compelled to reverse the trial court’s summary denial of Delice’s above-referenced claim (which went to the merits of the claim), we would observe that Delice’s motion was facially insufficient. To sufficiently allege prejudice, Delice was required to aver that he would not have entered his no contest plea to the violation of probation charge but for his attorney’s misrepresentation regarding length of sentence. See Baker v. State, 879 So.2d 663, 664 (Fla. 5th DCA 2004). No such allegation was set forth in Delice’s amended motion.
Accordingly, on remand, the trial court is directed to strike Delice’s claim as facially insufficient and provide Delice a reasonable time period in which to file an amended motion as to his claim that counsel had induced him to enter a plea to the violation of probation charge by misrepresenting that Delice would receive a ten year imprisonment sentence. Spera v. State, 971 So.2d 754 (Fla.2007). If Delice timely files a facially sufficient amended motion, the trial court shall either grant Delice an evidentiary hearing or attach portions of the record that conclusively refute Delice’s claim.
AFFIRMED, in part; REVERSED, in part; REMANDED.
SAWAYA, EVANDER and BERGER, JJ., concur.
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Voshell v. State, 187 So. 3d 370 (Fla. 1st DCA 2016)…ounsel are ‘conclusively’ refuted by the plea colloquy. While the plea colloquy may appear to be some evidence .contrary to defendant’s claim, it is not so clear or so inconsistent with the claim so as to ‘conclusively1 rebut it.”); Delice v. State, 103 So. 3d 262 (Fla. 5th DCA 2012) (citing Le-roux to support its conclusion that the written plea agreement, which stated that there was “no dispositional understanding[,]”[ *] did not conclusively refute Del-ice’s claim that counsel had assured him he would rece…
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Good v. State, 200 So. 3d 185 (Fla. 5th DCA 2016)…required affidavit could not be obtained, see Fla. R. Crim. P. 3.850(c), we are compelled to reverse and remand with directions that the trial court strike Good’s motion as facially insufficient, allowing leave to amend. See, e.g., Delice v. State, 103 So. 3d 262, 263 (Fla. 5th DCA 2012); Campbell v. State, 139 So. 3d 490, 498 (Fla. 2d DCA 2014); Nelson v. State, 996 So. 2d 950, 952 (Fla. 2d DCA 2008). In the event Good timely files a facially sufficient amended motion,2 the trial court shall either grant a…
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Cherry v. State (Fla. 5th DCA 2019)
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- State v. Leroux, 689 So. 2d 235 (Fla. 1996)
- Baker v. State, 879 So. 2d 663 (Fla. 5th DCA 2004)
- Faires v. State, 995 So. 2d 1074 (Fla. 5th DCA 2008)