PEREZ v. STATE (2005)

Amauri Perez appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

With regard to ground two of the motion filed by defendant-appellant Perez, we remand for an evidentiary hearing.   The defendant's sworn motion states in substance that trial counsel advised him that he was likely to be acquitted of the charges of aggravated battery on a police officer and resisting arrest with violence.   He asserts that in reliance on this advice he rejected the State's plea offer of a five-year mandatory minimum term of imprisonment.   Upon conviction, the defendant was sentenced to ten years with a mandatory minimum of five years.   The defendant alleges that counsel's advice to reject the plea was incompetent in view of the substantial evidence against him.   The record does not conclusively refute that claim.   See Sharpe v. State, 861 So.2d 483 (Fla. 3d DCA 2003);  Gomez v. State, 832 So.2d 793 (Fla. 3d DCA 2002);  Garcia v. State, 814 So.2d 536 (Fla. 3d DCA 2002).

We agree with the trial court's thorough analysis rejecting the defendant's other claims.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

PER CURIAM.