Gessner v. State, 691 So. 2d 48

Gessner v. State

691 So. 2d 48 | Fla. Dist. Ct. App. | 1997

PER CURIAM.

Daryl E. Gessner (Gessner) appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse in part and affirm in part.

*49Gessner asserts five grounds in support of his motion, only two of which have merit and warrant discussion. He alleges that his plea, to two counts of DUI manslaughter and two counts of DUI with serious bodily injury, was involuntary because his counsel told him that he would be eligible for gain time and provisional sentencing credits, and further that his sentences would be concurrent. Gessner was in fact sentenced to two consecutive prison terms, followed by probation. He further alleges that he relied upon these misrepresentations in negotiating his plea of nolo contendere to these charges. Nothing in the plea agreement, the plea colloquy, or the sentencing hearing contain clear evidence which refutes these allegations.

In accordance with State v. Leroux, 689 So.2d 235 (Fla. Dec. 19, 1996),1 we reverse and remand with respect to these two issues, for either the attachment of additional portions of the record which conclusively show that Gessner is entitled to no relief, or for an evidentiary hearing. We affirm the order of the trial court in all other respects.

WEBSTER, MICKLE and LAWRENCE, JJ., concur.

. The trial judge did not have the benefit of this decision when he entered his order denying relief on July 16, 1996.