Silverstein v. State

District Court of Appeal of Florida

Silverstein v. State

985 So. 2d 635, 2008 WL 2436598

CourtDistrict Court of Appeal of Florida

DecidedJune 18, 2008

Docket4D08-235

StatusPublished

Cited by4 cases

This text of 985 So. 2d 635 (Silverstein 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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Silverstein v. State, 985 So. 2d 635, 2008 WL 2436598 (Fla. Ct. App. 2008).

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Opinion

985 So.2d 635 (2008)

Ivan H. SILVERSTEIN, Appellant,
v.
STATE of Florida, Appellee.

No. 4D08-235.

District Court of Appeal of Florida, Fourth District.

June 18, 2008. Rehearing Denied July 30, 2008.

Ivan Howard Silverstein, Perry, pro se.

No appearance required for appellee.

PER CURIAM.

The trial court summarily denied appellant's rule 3.850 motion to vacate his conviction as untimely. Appellant had attached new evidence to his motion in the form of a corrected driving record issued by the DHSMV that did not exist at the time he entered his plea.^[1]See Silverstein v. State, 964 So.2d 867 (Fla. 4th DCA 2007). Because the record attached by the trial court does not conclusively show that appellant is entitled to no relief, the trial court's summary denial of appellant's rule 3.850 motion is reversed, and this case is remanded for an evidentiary hearing at which the trial court shall determine whether, as a result of ineffective assistance of counsel, appellant pled guilty to a felony that could not have occurred as a matter of law, resulting in a manifest injustice. Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); State v. McBride, 848 So.2d 287, 291-92 (Fla.2003); Ross v. State, 901 So.2d 252, 254 (Fla. 4th DCA 2005); Hunt v. State, 922 So.2d 452, 453 (Fla. 4th DCA 2006); Adams v. State, 957 So.2d 1183, 1186-87 (Fla. 3d DCA 2006).

Reversed and remanded.

SHAHOOD, C.J., KLEIN and MAY, JJ., concur.

NOTES

[1] This is the third time appellant has raised this issue in post-conviction motions. The first time was less than two years after he had entered his plea, but this court did not reach the issue, because he was no longer imprisoned for that offense and had not yet been sentenced to a greater sentence for a subsequent conviction based on points added for that offense. Silverstein v. State, 937 So.2d 137 (Fla. 4th DCA 2006).

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985 So.2d 635 (2008)

Ivan H. SILVERSTEIN, Appellant,
v.
STATE of Florida, Appellee.

No. 4D08-235.

District Court of Appeal of Florida, Fourth District.

June 18, 2008. Rehearing Denied July 30, 2008.

Ivan Howard Silverstein, Perry, pro se.

No appearance required for appellee.

PER CURIAM.

The trial court summarily denied appellant's rule 3.850 motion to vacate his conviction as untimely. Appellant had attached new evidence to his motion in the form of a corrected driving record issued by the DHSMV that did not exist at the time he entered his plea.^[1]See Silverstein v. State, 964 So.2d 867 (Fla. 4th DCA 2007). Because the record attached by the trial court does not conclusively show that appellant is entitled to no relief, the trial court's summary denial of appellant's rule 3.850 motion is reversed, and this case is remanded for an evidentiary hearing at which the trial court shall determine whether, as a result of ineffective assistance of counsel, appellant pled guilty to a felony that could not have occurred as a matter of law, resulting in a manifest injustice. Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); State v. McBride, 848 So.2d 287, 291-92 (Fla.2003); Ross v. State, 901 So.2d 252, 254 (Fla. 4th DCA 2005); Hunt v. State, 922 So.2d 452, 453 (Fla. 4th DCA 2006); Adams v. State, 957 So.2d 1183, 1186-87 (Fla. 3d DCA 2006).

Reversed and remanded.

SHAHOOD, C.J., KLEIN and MAY, JJ., concur.

NOTES

[1] This is the third time appellant has raised this issue in post-conviction motions. The first time was less than two years after he had entered his plea, but this court did not reach the issue, because he was no longer imprisoned for that offense and had not yet been sentenced to a greater sentence for a subsequent conviction based on points added for that offense. Silverstein v. State, 937 So.2d 137 (Fla. 4th DCA 2006).

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985 So. 2d 635, 2008 WL 2436598, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silverstein-v-state-fladistctapp-2008.

Opinion

Ivan H. SILVERSTEIN, Appellant, v. STATE of Florida, Appellee.

NOTES

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Cite This Page — Counsel Stack

Ivan H. SILVERSTEIN, Appellant,
v.
STATE of Florida, Appellee.