Jones v. State, 2D02-4259.
| Decision Date | 06 June 2003 |
| Docket Number | No. 2D02-4259.,2D02-4259. |
| Citation | 846 So.2d 1224 |
| Parties | Arlis R. JONES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Arlis R. Jones appeals the trial court's order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without discussion two of the six claims Jones raised in his motion. We reverse the trial court's summary denial of the remaining four claims and remand for further proceedings.
In the first of these four claims, Jones contended that his counsel was ineffective for stipulating to a factual basis for sexual battery when none existed. See Koenig v. State, 597 So.2d 256, 258 (Fla. 1992)
(); State v. Pelham, 737 So.2d 572, 573 (Fla. 1st DCA 1999) (same). Jones asserted that if his counsel had not stipulated to the factual basis, the State would have been unable to present a sufficient factual basis to support the charge and the trial court would have discharged Jones or would have rejected the plea. Because the portion of the record attached to the order does not contain a factual basis for sexual battery, but only counsel's stipulation that there was a factual basis, we reverse and remand for the trial court to attach additional portions of the record that adequately refute Jones' claim or, if that is not possible, for an evidentiary hearing.
In the second claim, Jones contended that his counsel was ineffective for failing to object to a double jeopardy violation by the State. He argued that the State improperly charged him with more than one crime when the criminal acts occurred during the "same time period" and the "same criminal episode." See Morman v. State, 811 So.2d 714, 717 (Fla. 2d DCA 2002)
; Russo v. State, 804 So.2d 419 (Fla. 4th DCA 2001). He claimed that because his counsel did not advise him of the double jeopardy violation, his plea was involuntary; had he been properly advised, he would not have pleaded no contest.
Whether multiple offenses arise from the "same criminal episode" depends on: (1) whether separate victims are involved, (2) whether the crime locations are separate, and (3) whether a temporal break separates the incidents. Vasquez v. State, 778 So.2d 1068, 1070 (Fla. 5th DCA 2001). Here, the victim was the same, the crime locations were the same, and Jones argues the incident was one continuous domestic argument beginning in the late evening and ending early the next morning. It is not clear whether a temporal break separated the battery charged in count one and the sexual battery charged in count two because the portions of the record that were attached to the trial court's order do not include the factual basis for the charges. Because the attachments do not refute this claim, we reverse and remand for the trial court to attach additional portions of the record that conclusively refute the claim, or if that is not possible, for an evidentiary hearing.
In the third claim, Jones contended that his counsel was ineffective for inducing him to accept the plea bargain without telling him that consent is a defense to a sexual battery charge. He claimed that he told counsel that his wife had consented to his sexual advances and that he would have proceeded to trial had his counsel advised him of the availability of the defense. In order for a trial court to summarily deny a defendant's claim that his counsel failed to advise him of a specific defense, the record must conclusively refute the claim. Flores v. State, 662 So.2d 1350, 1351-52 (Fla. 2d DCA 1995).
In this case, the transcript of the plea colloquy attached to the order shows Jones answered "yes" when the trial court asked him if he was satisfied with his attorney. This...
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