       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                        DIEGO PUERTAS OLIVA,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D13-3789

                             [July 23, 2014]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Michael Robinson,
Judge; L.T. Case No. 08-8322 CF10A.

   Michelle Walsh of Michelle Walsh, P.A., Miami, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for
appellee.

PER CURIAM.

  Diego Puertas Oliva appeals the summary denial of his rule 3.850
postconviction motion. See Fla. R. Crim. P. 3.850. While we affirm the
denial of ground two without comment, the record does not conclusively
refute ground one, that counsel was ineffective in failing to advise him of
his potential sentencing exposure.

  Oliva was initially charged with DUI Manslaughter/Unlawful Blood
Alcohol Level, DUI Manslaughter/Impairment, Vehicular Homicide, DUI
with Property Damage, and Failure to Obey a Law Enforcement Officer.
Oliva alleges that he entered into a negotiated no contest plea to DUI
Manslaughter/Impairment and DUI with Property Damage whereby the
state agreed to nolle prosse several of the counts and also cap his prison
sentence at the bottom of the guidelines, which was 124.65 months, if
Oliva pled open. Counsel advised him that he could also seek a downward
departure. At no time, states Oliva, was he informed of the possibility of
probation in addition to the agreed-upon cap. The court ultimately
sentenced him to 124.65 months imprisonment, for DUI Manslaughter,
with a 4-year mandatory minimum, to be followed by 4.5 years’ probation.

  At issue is Oliva’s claim that he was not advised of the possibility that he
could receive probation in addition to the maximum agreed-upon prison
sentence. He relies upon Eggers v. State, 624 So. 2d 336 (Fla. 1st DCA
1993), for the proposition that a defendant is entitled to relief when not
informed of the probationary component to a sentence when entering a
plea. The state, however, urges this court to affirm based upon this being
an open plea. At all times during the plea hearing and subsequent
proceedings, the agreement was referred to as an open plea. Oliva,
however, argues that it was a hybrid plea based upon the agreed
sentencing cap, his opportunity to file a downward departure motion, and
the state’s having nolle prossed two charges. Although he was unsure how
much time the court would choose to impose, his understanding was that
it would not exceed 124.65 months pursuant to the agreement. In other
words, it was “open” in the sense that the court could consider something
less than the cap. Probation was not discussed on the record until the
day of sentencing.

  Because the record before us does not refute Oliva’s understanding that
his maximum sentencing exposure, including probation, could not exceed
124.65 months based upon the agreed-upon sentencing cap, we reverse
and remand for the trial court to conduct an evidentiary hearing on this
claim.

WARNER, LEVINE and KLINGENSMITH, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                      2
