Collazo v. State, 8 So. 3d 1273 (Fla. 5th DCA 2009). · Go Syfert
Collazo v. State, 8 So. 3d 1273 (Fla. 5th DCA 2009). Cases Citing This Book View Copy Cite
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A general question during a plea colloquy regarding promises made in exchange for a plea is insufficient to refute an allegation of specific misadvice by counsel about sentence length.

A non-English-speaking defendant appeals the denial of postconviction relief, alleging counsel misadvised him regarding the length of his sentence and that the plea agreement contained inconsistent terms. The court addresses whether the plea colloquy conclusively refutes the claim of specific misadvice. The court applies the rule that a general question about promises made in exchange for a plea is insufficient to refute an allegation of specific misadvice by counsel about the length of a sentence. Because the record does not conclusively refute the defendant's allegations, the court reverses the denial of relief and remands for an evidentiary hearing or record attachments.

4 citation events across 1 distinct court.
Cited for
At page 1274 Insufficiency of general questions to refute specific misadvice4 citing casesholding the general question during plea colloquy about promises made in exchange for plea is insufficient to conclusively refute allegation of specific misadvice by counsel about length of sentence4 citing courts put it this way
  • Dontrevius Byron v. State, 241 So. 3d 271 (Fla. 5th DCA 2018).published
    “[A] general question about promises made in exchange for a plea is insufficient to refute an allegation of specific misadvice by counsel about the length of a sentence”
  • Roger R. Lamkin v. State, 215 So. 3d 640 (Fla. 5th DCA 2017).published
    “a [court’s] general question about promises made in exchange for a plea is insufficient to refute an allegation of specific misadviee by counsel about the length of a sentence”
  • Exalisse v. State, 251 So. 3d 354 (Fla. 5th DCA 2018).published
    (holding the general question during plea colloquy about promises made in exchange for plea is insufficient to conclusively refute allegation of specific misadvice by counsel about length of sentence)
  • Wilfred Exalisse v. State, No. 5D18-1647 (Fla. 5th DCA Aug. 20, 2018).published
    (holding the general question during plea colloquy about promises made in exchange for plea is insufficient to conclusively refute allegation of specific misadvice by counsel about length of sentence)
Retrieving the full opinion text from the archive…
Josue COLLAZO, Appellant,
v.
STATE of Florida, Appellee
5D09-343.
District Court of Appeal of Florida, Fifth District.
May 8, 2009.
Published opinion
8 So. 3d 1273
2009 Fla. App. LEXIS 4424
2009 WL 1255297
Background: Defendant filed motion for postconviction, alleging that he entered a plea based upon misadvice from counsel regarding the length of sentence. The Circuit Court, Osceola County, Scott Polodna, J., denied motion. Defendant appealed., Holding: The District Court of Appeal held that record did not conclusively refute allegation that defendant entered a plea based upon misadvice from counsel regarding the length of his sentence, and thus motion could not be summarily denied., Josué Collazo, Jasper, pro se., Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
Sawaya, Evander, Pleus.
Cited by 4 opinions  |  Published
[*1274] PER CURIAM.

Josué Collazo appeals the denial of his rule 3.850 motion for postconviction relief. Because the record does not conclusively refute his claim that he entered a plea based upon misadvice from counsel regarding the length of his sentence, we reverse. The remainder of Collazo’s claims are without merit, and we affirm as to them.

Collazo, who does not speak English, pled guilty to robbery with a firearm with a mask, which carries a minimum mandatory term of ten years. The court sentenced Collazo to fifteen years in the Department of Corrections, with a ten-year minimum mandatory term, followed by two years of community control and three years of probation.

Collazo contends that he entered his plea with the understanding, gained from his counsel, that he would receive a ten-year sentence and that his understanding was memorialized in the written plea agreement that he signed. He attached to his motion a copy of the Spanish version of the plea agreement, which does in fact include the promise of a maximum sentence of ten years. Collazo also attached an English translation of the plea agreement, which is inconsistent with the Spanish version because of the addition of the handwritten notation “sentencing up to court with at least,” followed by an arrow indicating that this language was to be inserted in front of the ten-year minimum mandatory sentence. He alleges that this additional language was not on the English version when he signed it.

Misrepresentations or misadvice by counsel about the length of a sentence can be the basis for postconviction relief. See State v. Leroux, 689 So.2d 235, 236 (Fla.1997); Fisher v. State, 824 So.2d 1050 (Fla. 3d DCA 2002). An allegation that counsel misrepresented the length of time that a defendant would serve can be summarily denied if the plea colloquy conclusively refutes the allegations. Leroux; Montgomery v. State, 615 So.2d 226 (Fla. 5th DCA 1993). However, a general question about promises made in exchange for a plea is insufficient to refute an allegation of specific misadvice by counsel about the length of a sentence. DeMonia v. State, 966 So.2d 22 (Fla. 2d DCA 2007); Fisher v. State, 824 So.2d 1050, 1052 (Fla. 3d DCA 2002); Johnson v. State, 776 So.2d 1024 (Fla. 1st DCA 2001).

In this case, the plea colloquy does not refute Collazo’s allegations that he entered his plea with the understanding that he would be receiving a ten-year minimum mandatory sentence and only a ten-year minimum mandatory sentence and that when he signed the English translation of the plea agreement, it provided for a ten-year sentence, just as the Spanish version had. In fact, the plea colloquy reflects some confusion by Collazo and demonstrates that the trial court did not specifically ask him if his counsel had promised him a specific sentence. Since the record does not conclusively refute Collazo’s allegations as to this claim, this case must be remanded for attachment of those portions of the record conclusively refuting Colla-zo’s allegations or for an evidentiary hearing.

The denial of the remainder of Collazo’s claims is affirmed.

AFFIRMED in part; REVERSED and REMANDED FOR RECORD ATTACHMENTS OR AN EVIDENTIARY HEARING.

SAWAYA and EVANDER, JJ. and PLEUS, R., Senior Judge, concur.