Ray v. State
| Decision Date | 27 December 1985 |
| Docket Number | No. 85-2567,85-2567 |
| Citation | 480 So.2d 228,11 Fla. L. Weekly 69 |
| Parties | 11 Fla. L. Weekly 69 John William RAY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
John William Ray appeals the summary denial of his motion for postconviction relief. We reverse.
Ray alleged that he was offered his choice between two different sentence dispositions in exchange for his agreement to plead guilty to a charge of armed robbery. He could accept the three-year minimum mandatory sentence required by section 775.087(2), Florida Statutes (1983), or the state could forego the allegation that a firearm was used and Ray would receive instead a sentence of four and one-half years. Ray further stated that he asked his attorney which alternative would be preferable, and was advised to opt for the three-year sentence because he still would be eligible for so-called "incentive" gain time. 1 After following his attorney's advice and receiving the three years, Ray discovered that he was barred by law from eligibility for any type of gain time. Thus, he reasoned, counsel had been ineffective by virtue of his erroneous advice and, as a result, the plea was not entered freely and voluntarily.
The trial court, denying Ray's motion, attached a copy of James v. Department of Corrections, 424 So.2d 826 (Fla. 1st DCA 1982), which states that there is neither statutory nor administrative authority for denying incentive gain time to prisoners serving minimum mandatory sentences pursuant to section 775.087(2), Florida Statutes (1983). However, James was decided prior to the passage of chapter 83-215, section 51, Laws of Florida, which amended section 775.087(2), and prior to the enactment of Florida Administrative Code Rule 33-11.065(1). The revised statute and rule apply to all offenses committed after August 12, 1983, apparently including Ray's charge, and provide that prisoners are no longer eligible for incentive gain time until after they have served the entirety of any minimum mandatory sentence. 2 Thus Ray's appraisal of his status regarding gain time is correct. If counsel did tell Ray that he would be eligible for incentive gain time during the course of his three-year term, he was indeed mistaken. 3
Ray urges that had counsel correctly apprised him of the status of the law, he would have asked to receive the four and one-half year sentence. Had he made this choice, the Department of Corrections first would have established a "tentative release date" by deducting basic gain time from Ray's maximum sentence. The resulting presumptive sentence, by our calculations, also would have totaled three years, but because it would not have involved a minimum mandatory sentence Ray further would have been eligible for whatever incentive gain time he was motivated to earn. 4 Assuming Ray accumulated a satisfactory prison record, his actual period of incarceration likely would have been less than the three years he is presently destined to serve.
We recognize that a defendant may not always be entitled to withdraw a plea of guilty because his sentence is not what his lawyer led him to expect. Lepper v. State, 451 So.2d 1020 (Fla. 1st DCA 1984). However, we perceive a difference between a "judgment call," whereby an attorney offers an honest but incorrect estimate of what sentence a judge may impose, and a clear misstatement of how the law affects a defendant's sentence. A criminal defendant is entitled to reasonable reliance upon the representations of his counsel...
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