Howard v. State

879 So. 2d 656, 2004 Fla. App. LEXIS 11448, 2004 WL 1737476

Opinion

PER CURIAM.

Richard Howard appeals the trial court’s denial of his Motion for Post-Conviction Relief. See Fla. R.Crim. P. 3.850. We reverse only on the issue of whether Howard’s plea agreement was voluntary.

According to Howard, his attorney erroneously advised him that he could receive gain time on his ten-year mandatory minimum sentence. As the record does not conclusively refute Howard’s claim, he is entitled to an evidentiary hearing on the matter, for which we remand this case to the trial court. See State v. Leroux, 689 So.2d 235 (Fla.1996); Bell v. State, 746 So.2d 515 (Fla. 3d DCA 1999).

We affirm the denial of the Rule 3.850 motion in all other respects.

Affirmed in part, reversed in part, remanded with instructions.