Borges v. State

District Court of Appeal of Florida

Borges v. State

959 So. 2d 1276, 2007 Fla. App. LEXIS 10669, 2007 WL 1988849

CourtDistrict Court of Appeal of Florida

DecidedJuly 11, 2007

DocketNo. 4D06-1736

StatusPublished

This text of 959 So. 2d 1276 (Borges v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Borges v. State, 959 So. 2d 1276, 2007 Fla. App. LEXIS 10669, 2007 WL 1988849 (Fla. Ct. App. 2007).

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Opinion

PER CURIAM.

We reverse the summary denial of appellant’s motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.

Appellant entered a plea of no contest to burglary of a dwelling while armed with a weapon and grand theft. The burglary charge was a first degree felony. See § 810.02(2)(b), Fla. Stat. (2006). Appellant complains that his lawyer did not tell him of a possible defense — that the pocket knife he had in his possession at the time of the burglary was not a “dangerous weapon” within the meaning of section 810.02(2)(b). See Arroyo v. State, 564 So.2d 1153 (Fla. 4th DCA 1990); L.B. v. State, 700 So.2d 370 (Fla.1997). Appellant claims that had he known of this defense he would have gone to trial instead of accepting the plea. See Grosvenor v. State, 874 So.2d 1176 (Fla.2004). No transcript of the plea colloquy was attached to the circuit court’s order denying relief.

On remand, the trial court shall either provide record attachments conclusively refuting appellant’s claim or conduct an evidentiary hearing under Grosvenor.

Reversed and remanded.

GUNTHER, GROSS and TAYLOR, JJ., concur.

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PER CURIAM.

We reverse the summary denial of appellant’s motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.

Appellant entered a plea of no contest to burglary of a dwelling while armed with a weapon and grand theft. The burglary charge was a first degree felony. See § 810.02(2)(b), Fla. Stat. (2006). Appellant complains that his lawyer did not tell him of a possible defense — that the pocket knife he had in his possession at the time of the burglary was not a “dangerous weapon” within the meaning of section 810.02(2)(b). See Arroyo v. State, 564 So.2d 1153 (Fla. 4th DCA 1990); L.B. v. State, 700 So.2d 370 (Fla.1997). Appellant claims that had he known of this defense he would have gone to trial instead of accepting the plea. See Grosvenor v. State, 874 So.2d 1176 (Fla.2004). No transcript of the plea colloquy was attached to the circuit court’s order denying relief.

On remand, the trial court shall either provide record attachments conclusively refuting appellant’s claim or conduct an evidentiary hearing under Grosvenor.

Reversed and remanded.

GUNTHER, GROSS and TAYLOR, JJ., concur.

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Bluebook (online)

959 So. 2d 1276, 2007 Fla. App. LEXIS 10669, 2007 WL 1988849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borges-v-state-fladistctapp-2007.

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