         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED


ROGER R. LAMKIN,

              Appellant,

 v.                                                       Case No. 5D16-3157

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed April 7, 2017

3.850 Appeal from the Circuit
Court for Citrus County,
Richard A. Howard, Judge.

Roger R. Lamkin, Madison, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Lori N. Hagan, and
Andrea K. Totten, Assistant Attorneys
General, Daytona Beach, for Appellee.


PER CURIAM.

       Roger Lamkin appeals the summary denial of his Florida Rule of Criminal

Procedure 3.850 motion for postconviction relief. After carefully considering all five claims

asserted by Appellant, we affirm as to all except for claim two, which is not conclusively

refuted by the records attached to the postconviction court’s order.
       Appellant asserts in claim two that defense counsel provided ineffective assistance

with regard to Appellant’s admitted violation of probation. Appellant alleged that his

attorney advised him that the court had agreed to reinstate his probation with an additional

condition that Appellant would be required to participate in mental health treatment.

Appellant claims that counsel then advised him to enter an open plea to the court, which

he did. There were no offers from the State. At the violation of probation hearing, the

court did not advise of a specific sentence. During the sentencing hearing, the court

informed Appellant that he faced a maximum of forty years in prison for all the charges,

and Appellant indicated he understood and wished to make an open plea to the court.

The court imposed a sentence of thirty-five years’ incarceration, instead of reinstating

Appellant’s probation.

       A claim that counsel misadvised about the length of a sentence is a facially

sufficient claim, but it may be summarily denied if the record conclusively refutes the

allegations. See State v. Leroux, 689 So. 2d 235, 236 (Fla. 1996). The court’s express

statements during the plea colloquy that it makes no promises as to the sentence, that it

could sentence the defendant up to the statutory maximum, or that the defendant may

serve every day of the sentence can refute a defendant’s claims that, under the advice of

counsel, the defendant entered a plea believing he would receive a particular sentence

or that he would get certain gain time. Id. at 238. However, “a [court’s] general question

about promises made in exchange for a plea is insufficient to refute an allegation of

specific misadvice by counsel about the length of a sentence.” Collazo v. State, 8 So. 3d

1273, 1274 (Fla. 5th DCA 2009).




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      Although the court informed Appellant of the possible maximum sentence he could

receive, the court did not mention that Appellant could face up to the maximum term of

imprisonment by pleading open to the court, and there was no discussion of what

sentence would actually be imposed. Because the records attached to the order of

summary denial do not conclusively refute claim two, we reverse for the postconviction

court to either attach appropriate records or conduct an evidentiary hearing on that claim

of affirmative misadvice as to the sentence that would be imposed for the violation of

probation.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER

PROCEEDINGS.


COHEN, C.J., BERGER, and EDWARDS, JJ., concur.




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