Netherly v. State, 87-788
| Decision Date | 10 June 1987 |
| Docket Number | No. 87-788,87-788 |
| Citation | 12 Fla. L. Weekly 1477,508 So.2d 524 |
| Parties | 12 Fla. L. Weekly 1477 Ernest NETHERLY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Ernest Netherly appeals from the summary denial of his post-conviction motion filed pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure. We reverse.
Among the grounds urged by Netherly in support of his motion before the trial court was the contention that his nolo contendere plea to a charge of escape was involuntary. He asserted that he was not informed by his attorney that the conviction resulting from his plea would cause him to lose 2514 days gain-time thus extending his release date from December 1986 to October 1993. If it is true that he was not told of that consequence, Netherly was entitled to withdraw his plea. Ray v. State, 480 So.2d 228, 229 (Fla. 2d DCA 1985); Wynn v. State, 452 So.2d 1097 (Fla. 2d DCA 1984).
The transcript of Netherly's sentencing hearing was attached to his motion but it does not overcome his claim that he was not advised of the effect of his plea. Indeed, the record contains a letter to Netherly from his public defender confirming that she misinformed him about the amount of gain-time his conviction would cause him to lose. At the very least the trial court, consistent with Rule 3.850, should have required the state to respond to his motion. Thus, we reverse the denial of Netherly's motion and remand to the trial court with directions that it follow Rule 3.850. Huntley v. State, 493 So.2d 58 (Fla. 1st DCA 1986).
Reversed and remanded with directions.
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Simmons v. State, 91-03172
...775.087(2), Florida Statutes (1983). Simmons makes no such claim. However, his motion for rehearing, which cites Netherly v. State, 508 So.2d 524 (Fla. 2d DCA 1987), implies that this may not be necessary. Netherly involved an escapee whose conviction required the forfeiture of accrued gain......
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Setzer v. State, 90-494
...the plea will result in the loss of basic gain time is improper and can form the basis for withdrawal of the plea. Netherly v. State, 508 So.2d 524 (Fla. 2d DCA 1987). See also Rackley v. State, 571 So.2d 533 (Fla. 1st DCA 1990). The record is silent on whether appellant prior to, or at the......
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Wright v. State
...does not allege that he was affirmatively misled by counsel. See, Tarpley v. State, 566 So.2d 914 (Fla. 2d DCA 1990); Netherly v. State, 508 So.2d 524 (Fla. 2d DCA 1987); Ray v. State, 480 So.2d 228 (Fla. 2d DCA Since it may not be said in the present case that Wright, in deciding whether t......
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Wilson v. State, 92-0801
...We conclude that the 3.850 motion is legally sufficient. See Rackley v. State, 571 So.2d 533 (Fla. 1st DCA 1990); Netherly v. State, 508 So.2d 524 (Fla. 2d DCA 1987). Accordingly, we reverse and remand for an evidentiary hearing or for attachment of portions of the record conclusively showi......