                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

JEFFREY DALE SMITH,                   NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D14-1237

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed September 16, 2014.

An appeal from the Circuit Court for Clay County.
Don H. Lester, Judge.

William R. Ponall, Snure & Ponall, P.A., Winter Park, for Appellant.

Pamela Jo Bondi, Attorney General, and Kristen Bonjour, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM

      Jeffrey Dale Smith appeals from an order denying his motion filed pursuant

to Florida Rule of Criminal Procedure 3.850 and a separate order denying an

amended motion that supplemented his original motion after the trial court had

issued a final order. We affirm, without comment, the postconviction court’s denial
of the Appellant’s second and third claims in his original rule 3.850 motion, as

well as the denial of his amended rule 3.850 motion. However, as to the appellant’s

first claim in his original rule 3.850 motion, we reverse.

          A defendant states a facially sufficient claim of ineffective assistance of

counsel where he alleges that his attorney misadvised him as to his maximum

possible sentencing exposure and that, but for this misadvice, he would not have

pled guilty, but would have insisted on going to trial. Kasper v. State, 828 So. 2d

1047, 1047-48 (Fla. 1st DCA 2002). A trial court may not summarily deny such a

claim unless it is refuted by the record. Id. at 1048.

          In the instant case, the appellant set out a facially sufficient claim. He

alleged that his attorney erroneously advised him that he faced a total possible

sentence of thirty-five years in prison, when the highest possible sentence he could

have received was actually twenty-five years in prison. He further asserted that, but

for this misadvice, he would not have pled guilty, but would have insisted on going

to trial. As the State conceded in its response to this Court’s Toler 1 order, this

claim was not refuted by the records attached to the trial court’s order denying

relief.

          Accordingly, we reverse the trial court's denial of the first claim in the

appellant’s original rule 3.850 motion. On remand, should the trial court again


1
    Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986).
                                             2
conclude that appellant's claim lacks merit, it shall attach to its order the portions

of the record conclusively refuting that claim. Otherwise, it shall hold an

evidentiary hearing.

      AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.

WOLF, ROWE, and OSTERHAUS, JJ., CONCUR.




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