Levens v. State, 91-2852

• Decision Date: 10 April 1992
• Docket Number: No. 91-2852,91-2852
• Citation: 598 So.2d 120
• Parties: Paul LEVENS, Appellant, v. STATE of Florida, Appellee. 598 So.2d 120, 17 Fla. L. Week. D944
• Court: Florida District Court of Appeals

Page 120

598 So.2d 120

Paul LEVENS, Appellant, v. STATE of Florida, Appellee.

No. 91-2852.

598 So.2d 120, 17 Fla. L. Week. D944

District Court of Appeal of Florida First District.

April 10, 1992.

Rehearing Denied June 15, 1992.

Paul Levens, appellant, pro se.

No appearance for appellee.

JOANOS, Chief Judge.

Paul Levens appeals the summary denial of his motion for post-conviction relief, predicated on allegations of ineffective assistance of appointed counsel. We affirm, with the following brief explanation.

Pursuant to a plea bargain, Levens pled guilty to sale of cocaine and was sentenced to nine years incarceration as an habitual felony offender. Levens alleges his counsel was ineffective for failing to advise him that he would be ineligible to receive basic gain time if he were sentenced as an habitual felony offender. See Sec. 775.084, Florida Statutes (1989). Levens further asserts he would not have entered into the plea bargain if he had been so advised, urging that under this court's decision in Rackley v. State, 571 So.2d 533 (Fla. 1st DCA 1990), he should be permitted to withdraw his plea. The trial court denied relief, finding Levens' allegations without merit, in light of the provisions of the plea of guilty and negotiated sentence form, a copy of which was attached to the order.

In Rackley, as in this case, the inmate alleged that his trial counsel failed to inform him that his plea bargain for an habitual felony offender sentence precluded his eligibility for statutory gain time. The trial court in Rackley found the ineffective assistance of counsel claims were refuted by written statements to the contrary in the written negotiated plea. This court disagreed. However, the Rackley fact scenario was somewhat more complex than the factual allegations presented in this case. Rackley alleged that his original public defender told him he was "looking at" a four-year sentence whether he stood trial or pled, and the state had offered a four-year sentence if he agreed to plead guilty. Two weeks later, a second public defender allegedly re-affirmed that if Rackley were found guilty at trial, four years was the maximum sentence he could receive. Rackley then learned that he was facing a possible thirty-year habitual felony offender sentence, with a ten-year minimum mandatory. The second public defender allegedly told Rackley that the state agreed to a ten-year habitual offender sentence in return for a guilty plea, and although he would be ineligible for administrative gain time, he was eligible for statutory and incentive gain time, so that his actual sentence would be about four years. After entry of his plea, Rackley learned he would not be eligible for statutory gain time, and that he would serve at least six years of the ten-year sentence. 571 So.2d at 534.

In addition to the various erroneous representations of Rackley's counsel, the record indicated that although the written sentence established that the conditions of his sentence were made clear to Rackley at sentencing, the negotiated plea of guilty was entered four days prior to the written sentence and the sentencing hearing. In view of these circumstances, this court reversed the denial of Rackley's motion for post-conviction relief with respect to his ineffective assistance of counsel claims. The court concluded the written negotiated plea statements did not refute Rackley's allegations that his trial counsel failed to inform him of his ineligibility for statutory gain time, or the allegations that the plea was involuntary due to the misrepresentations of counsel. 571 So.2d at 535.

Unlike the Rackley allegations of affirmative misrepresentations concerning eligibility for statutory gain time, appellant in this...