CRISS v. STATE (1998)

Thomas Criss appeals the summary denial of his motion for postconviction relief which includes the allegation that counsel misadvised him about his eligibility for gain time and provisional credits.   Criss states that he would not have entered into the plea agreement but for such misinformation.   Such erroneous advice may constitute ineffective assistance of counsel which might entitle an appellant to withdraw his plea.   See Carmichael v. State, 631 So.2d 346 (Fla. 2d DCA 1994);  Young v. State, 604 So.2d 925 (Fla. 2d DCA 1992).

The trial court has failed to rebut Criss' allegation by merely attaching to its order the case progress docket and the judgment and sentence.   Denial of the motion on this single issue is reversed.   On remand, unless the case file and record conclusively demonstrate that Criss is not entitled to relief, an evidentiary hearing shall be conducted.   If the court again concludes that summary denial is proper, it must attach to its order those portions of the case file and record which refute Criss' claims.   In all other respects the denial of the motion for postconviction relief is affirmed.

Affirmed in part;  reversed in part and remanded.

PER CURIAM.

PATTERSON, A.C.J., and ALTENBERND and WHATLEY, JJ., concur.