Burnham v. State

702 So. 2d 303, 1997 Fla. App. LEXIS 13996, 23 Fla. L. Weekly Fed. D 36

Opinion

PER CURIAM.

The defendant, Adrian Burnham, appeals the summary denial of his rule 3.850 motion for postconviction relief. He alleges that, in entering his plea of nolo contendere, he relied on his attorney’s erroneous advice that he would serve only about eighteen months in prison. The trial court denied the motion, finding that the written plea agreement, the transcript of the plea colloquy, and the transcript of the sentencing hearing conclusively showed that he was entitled to no relief.

However, these portions of the record do not conclusively refute the instant claim of positive misadvice. See State v. Leroux, 689 So.2d 235 (Fla.1997).

We therefore reverse the trial court’s order denying the defendant’s claim. On re mand, the trial court must either hold an evidentiary hearing or attach to its order those portions of the record that conclusively show that the defendant’s attorney did not give him positive misadvice concerning the length of his sentence.

Reversed.

MICKLE, LAWRENCE and PADOVANO, JJ., concur.