O'Neal v. State

District Court of Appeal of Florida

O'Neal v. State

860 So. 2d 456, 2003 Fla. App. LEXIS 15265, 2003 WL 22326663

CourtDistrict Court of Appeal of Florida

DecidedOctober 13, 2003

DocketNo. 1D03-2156

StatusPublished

Cited by2 cases

This text of 860 So. 2d 456 (O'Neal 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.

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O'Neal v. State, 860 So. 2d 456, 2003 Fla. App. LEXIS 15265, 2003 WL 22326663 (Fla. Ct. App. 2003).

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Opinion

PER CURIAM.

The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he alleged his trial counsel affirmatively mi-sadvised him regarding his eligibility for gain time. Because the trial court failed to attach portions of the record conclusively refuting the appellant’s claim, we reverse.

The trial court concluded that the appellant was not entitled to relief because he was fully advised as to the length of his sentence and attached portions of the sentencing hearing to support its conclusion. However, the appellant is not alleging ineffective assistance of counsel for failure of trial counsel to advise him of the potential length of his sentence, but instead for trial counsel’s misadvice regarding how much of the imposed sentence he would actually serve. Affirmative misadvice of counsel as to eligibility for gain time is a basis for postconviction relief, if not refuted by the record. See Jordan v. State, 833 So.2d 266 (Fla. 3d DCA 2002); Wilson v. State, 760 So.2d 237 (Fla. 2d DCA 2000); Little v. State, 673 So.2d 151 (Fla. 1st DCA 1996).

Accordingly, we reverse the trial court’s order and remand with instructions to either hold an evidentiary hearing or attach portions of the record conclusively refuting the appellant’s claim.

REVERSED and REMANDED.

ALLEN, DAVIS and BENTON, JJ., concur.

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PER CURIAM.

The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he alleged his trial counsel affirmatively mi-sadvised him regarding his eligibility for gain time. Because the trial court failed to attach portions of the record conclusively refuting the appellant’s claim, we reverse.

The trial court concluded that the appellant was not entitled to relief because he was fully advised as to the length of his sentence and attached portions of the sentencing hearing to support its conclusion. However, the appellant is not alleging ineffective assistance of counsel for failure of trial counsel to advise him of the potential length of his sentence, but instead for trial counsel’s misadvice regarding how much of the imposed sentence he would actually serve. Affirmative misadvice of counsel as to eligibility for gain time is a basis for postconviction relief, if not refuted by the record. See Jordan v. State, 833 So.2d 266 (Fla. 3d DCA 2002); Wilson v. State, 760 So.2d 237 (Fla. 2d DCA 2000); Little v. State, 673 So.2d 151 (Fla. 1st DCA 1996).

Accordingly, we reverse the trial court’s order and remand with instructions to either hold an evidentiary hearing or attach portions of the record conclusively refuting the appellant’s claim.

REVERSED and REMANDED.

ALLEN, DAVIS and BENTON, JJ., concur.

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860 So. 2d 456, 2003 Fla. App. LEXIS 15265, 2003 WL 22326663, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oneal-v-state-fladistctapp-2003.

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