Armstrong v. State

793 So. 2d 48, 2001 Fla. App. LEXIS 8291, 2001 WL 685875

Opinion

PER CURIAM.

Phillip W. Armstrong appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Armstrong raised six claims, which the trial court denied based on its findings that they were conclusively refuted by the record or facially insufficient. We agree and affirm as to every claim but one. We reverse on the claim challenging the voluntary nature of Armstrong’s plea based on allegations that defense counsel provided erroneous advice regarding gain time. This claim was facially sufficient, see, e.g., Hoch v. State, 679 So.2d 847 (Fla. 2d DCA 1996), but it was not conclusively refuted by the record, see Jones v. State, 774 So.2d 811 (Fla. 2d DCA 2000); Brakeall v. State, 742 So.2d 377 (Fla. 2d DCA 1999). Accordingly, we reverse the denial of relief on this claim only and remand for further proceedings. If the claim cannot be conclusively refuted by the record, an evidentiary hearing will be required. In all other respects, we affirm.

Affirmed in part, reversed in part, and remanded.

BLUE, A.C.J., and GREEN and DAVIS, JJ., Concur.