PELOQUIN v. STATE (2003)

This is an appeal from the trial court's summary denial of appellant's Rule 3.170(l) motion to withdraw a number of nolo contendere pleas.   We reverse and remand for an evidentiary hearing.

Appellant asserts that his plea was rendered involuntary by counsel's affirmative representation that his motion for downward departure would be granted and that he would be sentenced to “treatment” and a “suspended” prison term.   After the entry of his pleas, appellant was sentenced as a habitual felony offender to concurrent ten-year prison terms for each of the five cases in which he was convicted.   Upon a review of the record, we find that neither the plea forms nor the transcript of the plea colloquy conclusively refute Peloquin's claim that his lawyer represented that he would be granted a downward departure and placed in a treatment program.   In the absence of any evidence that the court specifically inquired of Peloquin whether his attorney made any representations or promises regarding the length and nature of the sentence he would receive, the trial court erred in summarily denying the motion to withdraw plea.   See State v. Leroux, 689 So.2d 235 (Fla.1996);  Brana v. State, 830 So.2d 942 (Fla. 4th DCA 2002);  Johnson v. State, 757 So.2d 586 (Fla. 2d DCA 2000).

Accordingly, we reverse and remand for an evidentiary hearing on appellant's claim that his lawyer represented that the trial court would grant his motion for downward departure and sentence appellant to a treatment program.

REVERSED and REMANDED.

STEVENSON, J.

POLEN and SHAHOOD, JJ., concur.