Fabian v. State

District Court of Appeal of Florida

Fabian v. State

932 So. 2d 645, 2006 Fla. App. LEXIS 11522, 2006 WL 1896318

CourtDistrict Court of Appeal of Florida

DecidedJuly 12, 2006

DocketNo. 4D06-311

StatusPublished

This text of 932 So. 2d 645 (Fabian 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

Fabian v. State, 932 So. 2d 645, 2006 Fla. App. LEXIS 11522, 2006 WL 1896318 (Fla. Ct. App. 2006).

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Opinion

PER CURIAM.

Paul Fabian moved to vacate his plea which disposed of violation of probation charges and resulted in a statutory-maximum fifteen-year sentence. He argues that trial counsel was ineffective for failing to point out to the trial court that it could impose the violation of probation related sentence concurrent with an existing Orange County sentence. See State v. Bell, 854 So.2d 686 (Fla. 5th DCA 2003), rev. denied, 866 So.2d 1212 (Fla.2004). Our review of the record provided reveals that the trial court was of the view that it lacked authority to do so.

Fabian entered into the plea nonetheless, as he was under the impression, which went uncorrected, that the Orange County sentence provided for concurrent sentencing. We find Fabian’s claim legally sufficient and remand for either the attachment of portions of the record conclusively refuting the claim or for an eviden-tiary hearing. See Grosvenor v. State, 874 So.2d 1176 (Fla.), cert. denied, 543 U.S. 1000, 125 S.Ct. 627, 160 L.Ed.2d 458 (2004); Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

GUNTHER, HAZOURI and MAY, JJ., concur.

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PER CURIAM.

Paul Fabian moved to vacate his plea which disposed of violation of probation charges and resulted in a statutory-maximum fifteen-year sentence. He argues that trial counsel was ineffective for failing to point out to the trial court that it could impose the violation of probation related sentence concurrent with an existing Orange County sentence. See State v. Bell, 854 So.2d 686 (Fla. 5th DCA 2003), rev. denied, 866 So.2d 1212 (Fla.2004). Our review of the record provided reveals that the trial court was of the view that it lacked authority to do so.

Fabian entered into the plea nonetheless, as he was under the impression, which went uncorrected, that the Orange County sentence provided for concurrent sentencing. We find Fabian’s claim legally sufficient and remand for either the attachment of portions of the record conclusively refuting the claim or for an eviden-tiary hearing. See Grosvenor v. State, 874 So.2d 1176 (Fla.), cert. denied, 543 U.S. 1000, 125 S.Ct. 627, 160 L.Ed.2d 458 (2004); Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

GUNTHER, HAZOURI and MAY, JJ., concur.

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Bluebook (online)

932 So. 2d 645, 2006 Fla. App. LEXIS 11522, 2006 WL 1896318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fabian-v-state-fladistctapp-2006.

Opinion

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