               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT



JULIO S. CENDEJAS,                            )
                                              )
              Appellant,                      )
                                              )
v.                                            )                Case No. 2D17-3957
                                              )
STATE OF FLORIDA,                             )
                                              )
              Appellee.                       )
                                              )

Opinion filed July 13, 2018.

Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for Polk
County; Neil A. Roddenbery, Judge.

Julio S. Cendejas, pro se.


KHOUZAM, Judge.

              Julio Cendejas challenges the order summarily denying his postconviction

motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the

denials of claims two, three, and four and remand for further proceedings. We affirm

the denial of claim one without comment.

              Mr. Cendejas was charged with ten counts of trafficking in various

narcotics; possession of a structure used for trafficking, sale, or manufacture of a

controlled substance; possession of drug paraphernalia; armed trafficking in

amphetamine; and possession of a firearm by a convicted felon. He entered a
negotiated guilty plea to counts two, three, five, six, eight, and nine, and the State

entered a nolle prosequi on counts one, four, seven, and ten. On counts two, five, and

eight, Mr. Cendejas was sentenced to concurrent fifteen-year prison terms, to be

followed by five years' probation on each count. He also received mandatory minimum

terms of ten years and three years on count eight pursuant to sections 775.087(2) and

893.135(1), Florida Statutes (2015). He was sentenced to time served on counts three,

six, and nine. Mr. Cendejas filed a motion for postconviction relief, in which he raised

three claims of ineffective assistance of trial counsel and one claim of cumulative error.

              We review the order summarily denying Mr. Cendejas' motion de novo.

Sanchez v. State, 210 So. 3d 252, 254 (Fla. 2d DCA 2017). We review a postconviction

court's summary denial of postconviction claims "to determine whether the claims are

legally sufficient and whether they are conclusively refuted by the record." Watson v.

State, 34 So. 3d 806, 808 (Fla. 2d DCA 2010) (quoting Griggs v. State, 995 So. 2d 994,

995 (Fla. 1st DCA 2008)). "When a postconviction court summarily denies a

defendant's motion without an evidentiary hearing, an appellate court 'must accept a

defendant's factual allegations as true to the extent they are not refuted by the record.' "

Balmori v. State, 985 So. 2d 646, 649 (Fla. 2d DCA 2008) (quoting Floyd v. State, 808

So. 2d 175, 182 (Fla. 2002)).

              To plead a claim of ineffective assistance of counsel, Mr. Cendejas was

required to allege facts that show that counsel's performance was deficient and that

counsel's deficient performance prejudiced him. Strickland v. Washington, 466 U.S.

668, 687 (1984). To satisfy the prejudice prong in the context of a guilty plea, Mr.




                                            -2-
Cendejas had to allege that but for counsel's ineffectiveness there was a reasonable

probability that he would have insisted on going to trial. See Campbell v. State, 139 So.

3d 490, 494 (Fla. 2d DCA 2014) (citing Cousino v. State, 770 So. 2d 1258, 1260 (Fla.

4th DCA 2000)).

              In claim two, Mr. Cendejas argued that his plea was involuntary "due to

counsel's patently deficient failure to properly inform him in advance that the agreed

upon plea offer ha[d] been enhanced to a much harsher sentence." More specifically,

he alleged that while he and trial counsel had discussed his entering a guilty plea and

receiving fifteen-year sentences for counts two, five, and eight, he was not advised of

the probationary terms or mandatory minimum sentences. He claimed that had he

known he would receive mandatory minimum and probationary terms, he would not

have entered the plea.

              Counsel's misadvice regarding the length of a sentence may constitute a

basis for postconviction relief. State v. Leroux, 689 So. 2d 235, 236 (Fla. 1996); Cherry

v. State, 837 So. 2d 597, 598 (Fla. 2d DCA 2003) ("A defendant may seek to withdraw

his plea on the ground that it was involuntary due to reliance on counsel's misadvice or

misrepresentation regarding the length of a sentence or the amount of time the

defendant would serve."); Townsend v. State, 927 So. 2d 1064, 1065 (Fla. 4th DCA

2006) ("A mandatory minimum sentence is a direct consequence of a defendant's plea,

and the failure to advise a defendant of this consequence renders a plea involuntary."

(quoting Thornton v. State, 747 So. 2d 439, 441 (Fla. 4th DCA 1999))). Because Mr.

Cendejas filed a facially sufficient claim, the only issue before us is whether the claim




                                            -3-
was conclusively refuted by the record.

              Here, the postconviction court relied only on the signed plea form to

summarily deny Mr. Cendejas' claim, finding that the mandatory minimum and

probationary terms were "clearly contained within the written plea agreement, signed

by" Mr. Cendejas. This court has held, however, that "the existence of a signed, written

plea agreement, by itself, is insufficient to refute a defendant's claim" that his plea was

entered involuntarily. Rivera v. State, 746 So. 2d 542, 542 (Fla. 2d DCA 1999) (citing

McCallum v. State, 591 So. 2d 318, 319 (Fla. 4th DCA 1991)); see also Cox v. State,

974 So. 2d 474, 475 (Fla. 2d DCA 2008) (reversing and remanding summary denial of

postconviction claim that plea was involuntary because "a signed, written plea

agreement, standing alone, is insufficient to refute a defendant's claim that he

misunderstood the terms of the plea agreement or that no other promises were made to

induce the plea").

              "[A] waiver of rights form can only refute a defendant's claim of involuntary

plea if the trial court conducted a proper plea colloquy and determined that the

defendant understood the form." Campbell, 139 So. 3d at 494 (holding that the waiver

of rights form signed by the defendant was insufficient to conclusively refute his claims

that his plea was involuntary because the transcript of plea hearing reflected that the

trial court failed to conduct proper inquiry); see also Townsend, 927 So. 2d at 1066

(rejecting the State's argument that the appellant's claim was conclusively refuted by the

signed, written plea form containing the three-year mandatory minimum sentence

because the record reflected that the "trial court made no effort to determine if the




                                            -4-
defendant could read the form, had the requisite level of education or mental capacity to

understand the form, or whether the form had been read or explained to him"). Without

a transcript of the plea colloquy, we cannot know whether the plea was voluntarily

entered. Thus, because the postconviction court attached only the signed plea

agreement, claim two is not conclusively refuted by the record. Accordingly, we reverse

the denial of claim two and remand for the postconviction court to either attach portions

of the record that conclusively refute the claim or to conduct an evidentiary hearing.

               Mr. Cendejas argued in claim three that trial counsel was ineffective for

failing to object to the imposition of the ten-year mandatory minimum sentence imposed

on count eight for his possession of a firearm, see § 775.087(2)(a)(1)(q), and for failing

to reserve his right to appeal issues that he would be entitled to raise in the appellate

court. He further claimed that he entered into plea negotiations "with the reasonable

belief that his right to appeal any and all dispositive issues was to be preserved."

               In denying the claim, the postconviction court again relied solely on the

plea agreement, specifically pointing to the provision that stated Mr. Cendejas

understood that by entering a plea without reserving the right to appeal, he was waiving

his right to appeal all matters. The court further found that to the extent Mr. Cendejas

was arguing that trial counsel should have challenged the factual basis for the charges

to which he pleaded, Mr. Cendejas could not "accept the benefit of the plea wherein the

State nolle prossed certain counts in exchange for the Defendant's plea to other counts,

to then attempt to challenge the factual matters for which he stipulated by entering into

the plea in the first place."




                                            -5-
              Mr. Cendejas' claim of ineffectiveness is essentially another claim that his

plea was involuntary due to trial counsel's deficient performance. See, e.g., Larson v.

State, 43 Fla. L. Weekly D865 (Fla. 2d DCA Apr. 20, 2018) ("[A]lthough the claim may

be couched in terms of ineffective assistance of counsel, the issue is truly whether the

plea was entered involuntarily."). Although we conclude that, for the same reasons

discussed in claim two, claim three is not conclusively refuted by the record, the claim is

facially insufficient because Mr. Cendejas has not alleged that but for trial counsel's

deficient performance he would have insisted on going to trial. See Campbell, 139 So.

3d at 494. Because his claim is facially insufficient and not conclusively refuted by the

record, we reverse and remand so that the postconviction court may strike the claim

and provide Mr. Cendejas sixty days to amend it. See Fla. R. Crim. P. 3.850(f).

              In claim four, Mr. Cendejas alleged a claim of cumulative error. Because

we must reverse claims two and three, we also reverse the postconviction court's denial

of this claim so that it may reconsider the claim after it has reconsidered claims two and

three. See Flint v. State, 84 So. 3d 469, 471 (Fla. 2d DCA 2012).

              Affirmed in part, reversed in part, and remanded with instructions.


CASANUEVA and MORRIS, JJ., Concur.




                                            -6-
