Douglas v. State , 1D11–1254.

• Citation: 67 So.3d 1119
• Decision Date: 18 July 2011
• Docket Number: No. 1D11–1254.,1D11–1254.
• Parties: Phillip E. DOUGLAS, Appellant,v.STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

67 So.3d 1119

Phillip E. DOUGLAS, Appellant,

v.STATE of Florida, Appellee.

No. 1D11–1254.

District Court of Appeal of Florida, First District.

July 18, 2011.

William Mallory Kent of the Law Office of William Mallory Kent, Jacksonville, for Appellant.Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.PER CURIAM.

Appellant seeks review of the summary denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm, without discussion, the summary denial of ground three. However, because the record does not conclusively refute grounds one and two of Appellant's motion, we reverse for an evidentiary hearing on those claims.

At the trial court, the State acknowledged in its court-ordered response to the motion that an evidentiary hearing is required to address Appellant's claims. Likewise, in response to the Toler ^* order issued by this court, the State conceded that the case should be remanded to the trial court for an evidentiary hearing on grounds one and two. However, the State also raised an issue concerning the timeliness of Appellant's motion.

In ground one, Appellant asserts that counsel affirmatively misadvised him that he would always be classified as “medium risk” if he pled guilty. He alleges that instead, he has been classified as “close” custody. He alleges that “serving a sentence under ‘close custody’ conditions is materially harsher than serving a sentence under ‘medium risk’ classification.” He alleges that but for this misadvice, he would have rejected the plea and insisted on going to trial. This claim is facially sufficient and is properly raised in a postconviction motion. See Colombo v. State, 972 So.2d 1101, 1102 (Fla. 1st DCA 2008) (“[A]ffirmative misadvice of counsel regarding the collateral consequences of entering a plea can constitute ineffective assistance of counsel and provide a basis for withdrawing a plea”).

In ground two, Appellant asserts that counsel was ineffective for failing to challenge an inculpatory statement he allegedly made in response to police questioning while he was in custody, but where he had not been advised of his Miranda rights. He alleges that had he been aware of the possible suppression of his statement, he would not have pled guilty but would have insisted on going to trial. This claim is facially sufficient. See Williams v. State, 717 So.2d 1066 (Fla. 2d DCA 1998) (“A trial attorney's failure to investigate a factual defense or a defense relying on suppression of the evidence, which results in the entry of an ill-advised plea of guilty, has long been held to constitute a facially sufficient attack upon the conviction”).

The trial court denied all of Appellant's claims on the ground that he signed a plea, which stated in part:

I hereby enter my plea of guilty because I am guilty. Before entering such plea of guilty, I was advised of the nature of all the charges against me, the statutory offense included within such charges, the range of maximum allowable punishments for each charge, all the possible defenses to each charge, and all circumstances in mitigation of such charges....