Diego Puertas Oliva v. State

District Court of Appeal of Florida

Diego Puertas Oliva v. State

142 So. 3d 973, 2014 WL 3605494, 2014 Fla. App. LEXIS 11184

CourtDistrict Court of Appeal of Florida

DecidedJuly 23, 2014

Docket4D13-3789

StatusPublished

This text of 142 So. 3d 973 (Diego Puertas Oliva 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

Diego Puertas Oliva v. State, 142 So. 3d 973, 2014 WL 3605494, 2014 Fla. App. LEXIS 11184 (Fla. Ct. App. 2014).

Pincite

Opinion

PER CURIAM.

Diego Puertas Oliva appeals the summary denial of his rule 3.850 postconviction motion. See Fla. R. Crim. P. 3.850. While we affirm the denial of ground two without comment, the record does not conclusively refute ground one, that counsel was ineffective in failing to advise him of his potential sentencing exposure.

Oliva was initially charged with DUI Manslaughter/Unlawful Blood Alcohol Level, DUI Manslaughter/Impairment, Vehicular Homicide, DUI with Property *974 Damage, and Failure to Obey a Law Enforcement Officer. Oliva alleges that he entered into a negotiated no contest plea to DUI Manslaughter/Impairment and DUI with Property Damage whereby the state agreed to nolle prosse several of the counts and also cap his prison sentence at the bottom of the guidelines, which was 124.65 months, if Oliva pled open. Counsel advised him that he could also seek a downward departure. At no time, states Oliva, was he informed of the possibility of probation in addition to the agreed-upon cap. The court ultimately sentenced him to 124.65 months imprisonment, for DUI Manslaughter, with a 4-year mandatory minimum, to be followed by ⅛.5 years' probation.

At issue is Oliva’s claim that he was not advised of the possibility that he could receive probation in addition to the maximum agreed-upon prison sentence. He relies upon Eggers v. State, 624 So.2d 336 (Fla. 1st DCA 1993), for the proposition that a defendant is entitled to relief when not informed of the probationary component to a sentence when entering a plea. The state, however, urges this court to affirm based upon this being an open plea. At all times during the plea hearing and subsequent proceedings, the agreement was referred to as an open plea. Oliva, however, argues that it was a hybrid plea based upon the agreed sentencing cap, his opportunity to file a downward departure motion, and the state’s having nolle prossed two charges. Although he was unsure how much time the court would choose to impose, his understanding was that it would not exceed 124.65 months pursuant to the agreement. In other words, it was “open” in the sense that the court could consider something less than the cap. Probation was not discussed on the record until the day of sentencing.

Because the record before us does not refute Oliva’s understanding that his maximum sentencing exposure, including probation, could not exceed 124.65 months based upon the agreed-upon sentencing cap, we reverse and remand for the trial court to conduct an evidentiary hearing on this claim.

WARNER, LEVINE and KLINGENSMITH, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

Diego Puertas Oliva appeals the summary denial of his rule 3.850 postconviction motion. See Fla. R. Crim. P. 3.850. While we affirm the denial of ground two without comment, the record does not conclusively refute ground one, that counsel was ineffective in failing to advise him of his potential sentencing exposure.

Oliva was initially charged with DUI Manslaughter/Unlawful Blood Alcohol Level, DUI Manslaughter/Impairment, Vehicular Homicide, DUI with Property *974 Damage, and Failure to Obey a Law Enforcement Officer. Oliva alleges that he entered into a negotiated no contest plea to DUI Manslaughter/Impairment and DUI with Property Damage whereby the state agreed to nolle prosse several of the counts and also cap his prison sentence at the bottom of the guidelines, which was 124.65 months, if Oliva pled open. Counsel advised him that he could also seek a downward departure. At no time, states Oliva, was he informed of the possibility of probation in addition to the agreed-upon cap. The court ultimately sentenced him to 124.65 months imprisonment, for DUI Manslaughter, with a 4-year mandatory minimum, to be followed by ⅛.5 years' probation.

At issue is Oliva’s claim that he was not advised of the possibility that he could receive probation in addition to the maximum agreed-upon prison sentence. He relies upon Eggers v. State, 624 So.2d 336 (Fla. 1st DCA 1993), for the proposition that a defendant is entitled to relief when not informed of the probationary component to a sentence when entering a plea. The state, however, urges this court to affirm based upon this being an open plea. At all times during the plea hearing and subsequent proceedings, the agreement was referred to as an open plea. Oliva, however, argues that it was a hybrid plea based upon the agreed sentencing cap, his opportunity to file a downward departure motion, and the state’s having nolle prossed two charges. Although he was unsure how much time the court would choose to impose, his understanding was that it would not exceed 124.65 months pursuant to the agreement. In other words, it was “open” in the sense that the court could consider something less than the cap. Probation was not discussed on the record until the day of sentencing.

Because the record before us does not refute Oliva’s understanding that his maximum sentencing exposure, including probation, could not exceed 124.65 months based upon the agreed-upon sentencing cap, we reverse and remand for the trial court to conduct an evidentiary hearing on this claim.

WARNER, LEVINE and KLINGENSMITH, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

142 So. 3d 973, 2014 WL 3605494, 2014 Fla. App. LEXIS 11184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diego-puertas-oliva-v-state-fladistctapp-2014.

Opinion

Related

Cite This Page — Counsel Stack