Tommy Burns v. State

District Court of Appeal of Florida

Tommy Burns v. State

190 So. 3d 257, 2016 WL 2609641, 2016 Fla. App. LEXIS 6974

CourtDistrict Court of Appeal of Florida

DecidedMay 6, 2016

Docket5D15-3419

StatusPublished

This text of 190 So. 3d 257 (Tommy Burns 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.

Bluebook

Tommy Burns v. State, 190 So. 3d 257, 2016 WL 2609641, 2016 Fla. App. LEXIS 6974 (Fla. Ct. App. 2016).

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Opinion

COHEN, J.

. Tommy. Burns appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule-of Criminal Procedure 3.850. Burns claims that trial counsel affirmatively misadvised him that the sentences-for his two convictions would 'run concurrently, however, the Department of Corrections is requiring he serve the sentences consecutively. ' He alleges that his -plea was therefore not voluntary and that he would not have entered- it but for counsel’s misadvice.

The trial court ruled that Burns’s motion was untimely filed. The State properly concedes this ruling was erroneous. Additionally, the sentencing orders attached to the trial judge’s order do not refute the allegations raised.

Burns was sentenced in the two cases on separate days. The trial judge attached the sentencing orders from both cases. The trial court 1 specified in the first case that the sentence was to- run- concurrently to any and all active sentences. The second case, which is the subject of this appeal, does not designate how the sentence was to be served. As a result, pursuant to section 921.16, Florida.Statutes (2012), the sentence is to be served consecutively. While the attachments might reflect the trial judge’s intent, it does not address the issue of counsel’s alleged misadvice.

We reverse and remand for the trial court to. either attach portions of the record refuting Burns’s allegations or in the alternative, hold an evidentiary hearing.

REVERSED AND REMANDED.

ORFINGER and EDWARDS, JJ., concur:

1

. Judge Wayne Wooten imposed the sentences.

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COHEN, J.

. Tommy. Burns appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule-of Criminal Procedure 3.850. Burns claims that trial counsel affirmatively misadvised him that the sentences-for his two convictions would 'run concurrently, however, the Department of Corrections is requiring he serve the sentences consecutively. ' He alleges that his -plea was therefore not voluntary and that he would not have entered- it but for counsel’s misadvice.

The trial court ruled that Burns’s motion was untimely filed. The State properly concedes this ruling was erroneous. Additionally, the sentencing orders attached to the trial judge’s order do not refute the allegations raised.

Burns was sentenced in the two cases on separate days. The trial judge attached the sentencing orders from both cases. The trial court 1 specified in the first case that the sentence was to- run- concurrently to any and all active sentences. The second case, which is the subject of this appeal, does not designate how the sentence was to be served. As a result, pursuant to section 921.16, Florida.Statutes (2012), the sentence is to be served consecutively. While the attachments might reflect the trial judge’s intent, it does not address the issue of counsel’s alleged misadvice.

We reverse and remand for the trial court to. either attach portions of the record refuting Burns’s allegations or in the alternative, hold an evidentiary hearing.

REVERSED AND REMANDED.

ORFINGER and EDWARDS, JJ., concur:

1

. Judge Wayne Wooten imposed the sentences.

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Bluebook (online)

190 So. 3d 257, 2016 WL 2609641, 2016 Fla. App. LEXIS 6974, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tommy-burns-v-state-fladistctapp-2016.