SMITH v. STATE (2004)

Theodore Smith, Jr. appeals the summary denial of his Criminal Rule of Procedure 3.850 motion for postconviction relief.   We reverse.

Pursuant to a negotiated guilty plea, Smith was sentenced to fifteen years for each of his first two counts, concurrently, with a ten-year mandatory minimum as a Prison Releasee Reoffender, and to a consecutive term of seven years for his third count, for a total of twenty-two years in prison.   In his motion for postconviction relief, he claimed ineffective assistance of counsel in misadvising him that all of his sentences would run concurrently, for a total sentence of fifteen years in prison.   Smith alleged that he would not have accepted the plea had he known the total sentence would exceed fifteen years.   He asked that the judgment and sentence be set aside, and he be granted a jury trial, on the ground that his plea was involuntarily obtained.   The trial court summarily denied the motion without furnishing any explanation or attaching any portions of the record.

Smith's motion was legally sufficient.   A postconviction movant may be entitled to relief in the form of leave to withdraw a plea on the basis of defense counsel's misrepresentation about the length of a sentence.   See State v. Leroux, 689 So.2d 235, 236 (Fla.1996). Accordingly, we reverse and remand for an evidentiary hearing or the attachment of portions of the record that conclusively refute Smith's ground for relief.

PER CURIAM.

GUNTHER, WARNER and HAZOURI, JJ., concur.