Baker v. State, 92-4282

• Decision Date: 02 July 1993
• Docket Number: No. 92-4282,92-4282
• Citation: 620 So.2d 1122
• Parties: 18 Fla. L. Week. D1529 Jimmy Joe BAKER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1122

620 So.2d 1122

18 Fla. L. Week. D1529

Jimmy Joe BAKER, Appellant, v. STATE of Florida, Appellee.

No. 92-4282.

District Court of Appeal of Florida,

First District.

July 2, 1993.

Jimmy Joe Baker, pro se.

No appearance for appellee.

PER CURIAM.

Jimmy Joe Baker has appealed from an order of the trial court, entered on remand in Baker v. State, 569 So.2d 1383 (Fla. 1st DCA 1990), summarily denying his motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We reverse and remand for further proceedings.

On October 16, 1989, Baker pled guilty to kidnapping with a firearm, armed robbery with a firearm, and possession of a firearm by a convicted felon. He signed a written "plea, waiver and consent" form, on which he indicated satisfaction with his counsel. As the factual basis for the plea, the form indicated that it was a "plea of convenience."

On April 20, 1990, Baker filed a 3.850 motion alleging: 1) ineffective assistance of counsel in urging a plea despite Baker's insistence that he was not guilty; 2) denial of the right to appeal, i.e., despite Baker's assertion that he had not had a gun, the court accepted his plea, foreclosing his right to appeal his guilt or innocence; and 3) denial of the right to represent himself. The trial court denied the motion by order of April 26, 1990, finding it refuted by portions of the files and records, but failing to attach those portions. Baker appealed, and this court reversed and remanded for either an evidentiary hearing, or attachment of relevant portions of the record. Baker v. State, 569 So.2d 1383 (Fla. 1st DCA 1990).

On October 11, 1991, the trial court entered the instant order on remand. It again summarily denied the motion, attaching the "plea, waiver and consent" form described above. This court found that the motion was correctly denied as to ground 3). However, it determined that the gravamen of the remaining allegations was that the trial court had accepted Baker's plea without determining a factual basis therefor, i.e., that a gun was used. See Rule 3.172(a), Fla.R.Crim.P. (before accepting a plea of guilty, the trial judge shall be satisfied that there is a factual basis for the plea).

Finding that the plea form did not refute Baker's argument, the court requested a response from the Attorney General's office pursuant to Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986). The order specifically directed the response to Koenig v. State, 597 So.2d 256 (Fla.1992) (prior to accepting a plea, the trial court must receive factual information establishing the offense), and Gust v. State, 558 So.2d 450 (Fla. 1st DCA 1990) (an allegation of ineffective assistance by advising a plea where there may have been no factual basis is not refuted by attachments which do not show that the court...