Opinion
Case No. 4D01-4323.
Opinion filed September 11, 2002.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Robert R. Makemson, Judge; L.T. Case No. 92-288 CFB.
Terrence E. Kehoe, Orlando, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
In this appeal from an order denying postconviction relief, appellant alleges that counsel's misstatements that his sentence would run concurrently with his other sentences prompted him to accept a plea he would not have accepted. He also alleges that he was on medication, which affected his ability to understand the plea proceedings. Because these claims are not conclusively refuted by the record, we reverse.
Appellant first claims he entered his plea admitting the violation of his probation based upon his counsel's misadvice that his sentence would run concurrently with the sentence recently imposed upon him in another case in another county. Had counsel not so advised him, he would not have admitted the violation of probation. Because the concurrent nature of the sentence was not addressed at his sentencing, his sentence was made consecutive to his other sentences. Nothing in the plea form or plea colloquy refuted this claim. In his plea form appellant agreed that nothing was promised or represented to him, other than what was contained in the plea agreement. The trial court also did not ask appellant whether he was promised anything. Under State v. Leroux, 689 So.2d 235 (Fla. 1996), that is insufficient to conclusively rebut appellant's claim. The supreme court in Leroux noted, "there may also be a difference between a `promise' as commonly understood, and an attorney's expert advice to his client. . . . Supplying such advice is not necessarily a promise of an outcome." Id. at 237. When appellant's attorney told him the sentences would be concurrent, appellant could have reasonably understood that as a statement of law, not a promise or a representation given to induce the plea. See Leroux, 689 So.2d at 237; Carter v. State, 752 So.2d 725, 725 (Fla. 3d DCA 2000); Raben v. State, 715 So.2d 331, 331 (Fla. 1st DCA 1998).
In his remaining claim, appellant alleges that he was under the influence of medication when he signed the plea agreement, which affected his ability to understand his rights. Although the attachments indicate appellant was not "under the influence of drugs or alcohol," when he signed the plea form and he stated under oath at his plea colloquy that he was not "taking any kind of drugs today," these attachments do not refute his claim that he understood the term "drugs" to refer to illegal drugs, not prescription medication. In fact, at the time of his plea he was under the influence of psychotropic medication, ascertainable by jail medical records, as a result of which he was unable to fully understand the constitutional rights he was waiving. His claims are not conclusively refuted by the record. Compare Payne v. State, 747 So.2d 1070, 1071 (Fla. 1st DCA 2000), with Bond v. State, 695 So.2d 778, 780 (Fla. 1st DCA 1997) (affirming denial where the defendant signed a written plea form indicating he was not under the influence of any drugs or sedatives that would affect his ability to understand the plea and indicated during the plea hearing that he was not under the influence of drugs, alcohol, ormedication).
We affirm as to the remaining issue raised as that was conclusively refuted by the record.
We reverse and remand as to the two grounds for relief, for either the attachment of additional portions of the record that conclusively show appellant is entitled to no relief or for an evidentiary hearing.
Affirmed in part, reversed in part, and remanded.
FARMER and MAY, JJ., concur.