Gessner v. State

District Court of Appeal of Florida

Gessner v. State

691 So. 2d 48, 1997 Fla. App. LEXIS 3507, 1997 WL 163345

CourtDistrict Court of Appeal of Florida

DecidedApril 9, 1997

DocketNo. 96-3096

StatusPublished

Cited by2 cases

This text of 691 So. 2d 48 (Gessner 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

Gessner v. State, 691 So. 2d 48, 1997 Fla. App. LEXIS 3507, 1997 WL 163345 (Fla. Ct. App. 1997).

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Opinion

PER CURIAM.

Daryl E. Gessner (Gessner) appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse in part and affirm in part.

[49]*49Gessner asserts five grounds in support of his motion, only two of which have merit and warrant discussion. He alleges that his plea, to two counts of DUI manslaughter and two counts of DUI with serious bodily injury, was involuntary because his counsel told him that he would be eligible for gain time and provisional sentencing credits, and further that his sentences would be concurrent. Gessner was in fact sentenced to two consecutive prison terms, followed by probation. He further alleges that he relied upon these misrepresentations in negotiating his plea of nolo contendere to these charges. Nothing in the plea agreement, the plea colloquy, or the sentencing hearing contain clear evidence which refutes these allegations.

In accordance with State v. Leroux, 689 So.2d 235 (Fla. Dec. 19, 1996),¹ we reverse and remand with respect to these two issues, for either the attachment of additional portions of the record which conclusively show that Gessner is entitled to no relief, or for an evidentiary hearing. We affirm the order of the trial court in all other respects.

WEBSTER, MICKLE and LAWRENCE, JJ., concur.

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PER CURIAM.

Daryl E. Gessner (Gessner) appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse in part and affirm in part.

[49]*49Gessner asserts five grounds in support of his motion, only two of which have merit and warrant discussion. He alleges that his plea, to two counts of DUI manslaughter and two counts of DUI with serious bodily injury, was involuntary because his counsel told him that he would be eligible for gain time and provisional sentencing credits, and further that his sentences would be concurrent. Gessner was in fact sentenced to two consecutive prison terms, followed by probation. He further alleges that he relied upon these misrepresentations in negotiating his plea of nolo contendere to these charges. Nothing in the plea agreement, the plea colloquy, or the sentencing hearing contain clear evidence which refutes these allegations.

In accordance with State v. Leroux, 689 So.2d 235 (Fla. Dec. 19, 1996),¹ we reverse and remand with respect to these two issues, for either the attachment of additional portions of the record which conclusively show that Gessner is entitled to no relief, or for an evidentiary hearing. We affirm the order of the trial court in all other respects.

WEBSTER, MICKLE and LAWRENCE, JJ., concur.

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Bluebook (online)

691 So. 2d 48, 1997 Fla. App. LEXIS 3507, 1997 WL 163345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gessner-v-state-fladistctapp-1997.

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