Lewis v. State

892 So. 2d 1231, 2005 Fla. App. LEXIS 1623, 2005 WL 357038

Opinion

PER CURIAM.

Howard C. Lewis appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. As we interpret it, the sworn motion filed by defendant-appellant Lewis alleges affirmative misadvice by trial counsel that he would receive gain time on a portion of his seven year mandatory minimum sentence imposed under sub-subparagraph 893.135(l)(b)l.b., Florida Statutes (2002). As the record now before us does not conclusively refute that claim, the defendant is entitled to an evidentiary hearing. See State v. Leroux, 689 So.2d 235, 238 (Fla.1996); Howard v. State, 879 So.2d 656 (Fla. 3d DCA 2004); Bell v. State, 746 So.2d 515, 516 (Fla. 3d DCA 1999). Accordingly the order now before us is reversed and the cause remanded for further proceedings consistent herewith.