Justin Voshell v. State of Florida

187 So. 3d 370

• Court: District Court of Appeal of Florida
• Decided: March 20, 2016
• Docket: 1D15-5906
• Status: Published

Opinion

PER CURIAM.

This appeal returns to the Court following reversal and remand in Voshell v. State, 174 So.3d 1089 (Fla. 1st DCA 2015), for the trial court to attach the portion of the record conclusively refuting Justin Vo-shell’s claim that counsel acted ineffectively by advising or assuring him that if he entered a plea the court would be lenient when sentencing him, and would impose a Youthful Offender sentence, for his armed robbery charges, or, in the least, would not impose lengthy sentences. Appellant entered a plea and the court imposed three concurrent terms of 42.5 years’ imprisonment.

The attached plea colloquy transcript indicates the trial court conducted only a general inquiry into whether “anybody” had “threatened, coerced, intimidated” or “promised” Appellant “anything[.]” This questioning does not conclusively refute his. assertions. See State v. Leroux, 689 So.2d 235, 237 (Fla.1996) (“Rule 3.850 explicitly requires that , the. record ‘conclusively’ rebut an otherwise cognizable claim if it is to be denied without a hearing. Here, we must. agree with the district court that it cannot be said that respondent’s allegations of the misadvice of counsel are ‘conclusively’ refuted by the plea colloquy. While the plea colloquy may appear to be some evidence .contrary to defendant’s claim, it is not so clear or so inconsistent with the claim so as to ‘conclusively 1 rebut it.”); Delice v. State, 103 So.3d 262 (Fla. 5th DCA 2012) (citing Le-roux to support its conclusion that the written plea agreement, which stated that there was “no dispositional understanding[,]”[ *] did not conclusively refute Del-ice’s claim that counsel had assured him he would receive a sentence of only 10 years, when the court imposed a 15-year sentence, because it was only a general ac-knowledgement that he was not promised anything to plead guilty).

We therefore reverse and remand for the trial court to appoint counsel to represent Appellant and to conduct an eviden-tiary hearing on this claim.

REVERSED AND REMANDED..

ROBERTS, C.J., SWANSON, and KELSEY, JJ., concur.

1 . As explained in the original opinión reversing the appellant’s first appeal in this case, the plea form does not conclusively refute the appellant’s claim, either.