       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                       ANTHONY SHANE QUINLIN,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                               No. 4D17-525

                              [May 30, 2018]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Steven J. Levin, Judge; L.T. Case No. 562015CF002710A.

  Carey Haughwout, Public Defender, and Erika Follmer, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

   In this appeal, appellant claims that his trial counsel was ineffective on
the face of the record by failing to file a motion to vacate his plea and
sentence, after the trial court sentenced him in excess of what he thought
was the plea agreement. We affirm, as we cannot conclude on the face of
the record that counsel was ineffective.

    The State charged appellant, Anthony Quinlin, with felony battery,
criminal mischief, and violation of a pretrial release-domestic violence
order. The State made two plea offers to the appellant: one for a straight
three-year prison sentence with no probation, and the other for a four-year
capped prison sentence. No mention of probation was made with respect
to the capped sentence.        Appellant accepted the four-year capped
sentence, and the trial court ultimately sentenced appellant to three years
in prison with two years of probation. Appellant did not object at the time
of sentencing, but the record contains a letter from his attorney stating:

      I cannot file an appeal for an illegal sentence because you did
      not receive an illegal sentence. Your offer was 3 years DOC,
      or a 4 year DOC CAP. He did not exceed the 4 years DOC. I
      informed you when I recommended you take the 3 year offer
      that he could give you probation. Remember, the 4 year DOC
      CAP was for prison time only.

(emphasis added).

    Appellant appealed, and he claims that trial counsel was ineffective for
failing to file a motion to vacate the plea when the sentence varied from
the plea agreement. In Echeverria v. State, 949 So. 2d 331, 334 (Fla. 1st
DCA 2007), the court reversed a sentence of five years of prison followed
by five years of probation because the court found that the record clearly
showed that in agreeing to a six-year prison sentence cap, appellant was
never informed of the possibility of additional probation. Thus, the
defendant had not been properly apprised of the consequences of his plea
and had not been given an opportunity to withdraw his plea when the trial
court decided to exceed the agreement. See also Jefferson v. State, 515
So. 2d 407, 408 (Fla. 1st DCA 1987).

    Here, the plea agreement appears to cap appellant’s sentence at four
years of prison, but the letter in the record indicates that appellant’s
counsel explained to him that the court could add probation. Because the
record does not clearly show that appellant was misinformed regarding his
plea, we cannot conclude that his counsel was ineffective on the face of
the record for failing to file a motion to withdraw the plea or to correct an
illegal sentence, based upon his sentence exceeding the plea agreement
sentencing parameters.

    Our affirmance is without prejudice to appellant filing a motion for
postconviction relief, as it appears that there is a dispute as to the terms
of the plea agreement.

CIKLIN and KLINGENSMITH, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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