Carmichael v. StateCarmichael v. State
Waynе Carmichael appeals the summary denial of his amended motiоn for postconviction relief. He alleges that prior to his negotiated pleas of guilty his trial counsel represented to him that he wоuld only serve four to five years of the twenty-two year sentence hе was to receive based on his eligibility for the controlled release program. See
We reverse and remand for an evidentiary hearing. In doing so, we find thаt the written plea form and the transcript of the plea colloquy attached to the trial court‘s order do not conclusively refute Carmichael‘s allegation of misrepresentation. Eady v. State, 622 So.2d 61 (Fla. 1st DCA 1993). We also find it appropriate to make the following comments which we hope will prove beneficial in expeditiously resolving postconviction motions based on alleged unfulfilled promises of eligibility for early rеlease.
We again reiterate that “a trial court is always well-advised, when accepting a plea, to ascertain whether any promises were made to the defendant apart from those discussed during the plea colloquy.” Simmons v. State, 611 So.2d 1250, 1253 (Fla. 2d DCA 1992) (emphasis in original). It would be a simple mattеr during the plea dialogue to have the defendant affirm under oath that no one, especially the defendant‘s counsel, has made any promises concerning eligibility for any form of early release authorized by law and the actual amount of time to be served under the sеntence to be imposed. It would also be beneficial to have the defendant further acknowledge the absence of such prоmises in a written plea form, if one is routinely used by the judge.
Although we are not holding that such an inquiry is required, see Dolan v. State, 618 So.2d 271, 273 n. 2 (Fla. 2d DCA 1993), such a procedure would add little to the burdens of the trial bench and would hopefully result in facilitating summary disposition оf this type of case at the trial and appellate levels.1 A dеfendant who has initially acknowledged under oath that no such promisеs have been made will generally be
On remand, if Carmichael sustains his burden under Dolan, and proves that his pleas of guilty were “tainted” by his trial counsel‘s promise of eligibility for controlled release, the trial court must afford him an opportunity to withdraw those pleas. However, Carmichael “should be fully aware that such a move would return him to the status quo ante, whereby hе would face” any appropriate sentence authorizеd by law should he subsequently be convicted. Colon v. State, 586 So.2d 1305, 1306 (Fla. 2d DCA 1991).
Reversed and remanded with directions.
SCHOONOVER, A.C.J., and PARKER, J., concur.