SIMPSON v. STATE (1999)

Elvin Simpson [“Simpson”] appeals the order of the Brevard County Circuit Court denying his motion for post-conviction relief.   We affirm as to all issues save one.

Simpson alleged in his 3.850 motion that he was informed by a friend, Charles Pine, that the State was seeking to have him sentenced for life but when he asked his attorney about it, his attorney responded, “Don't believe rumors, the most you can get is the guidelines.”   Simpson attached affidavits from Bruce and Sharon Pine averring that “Mr. Green at no time indicated the possibility of Mr. Simpson receiving a sentence of natural life in prison if he were found guilty.   He did tell me the sentence would be 17-25 years.”   Simpson received a guidelines departure sentence of life in prison.   Simpson alleged that if he had been properly advised of his sentence exposure, he would have taken the tendered plea offer of thirteen years.   The lower court denied the claim because Simpson did not appeal the departure.   We do not see this as a bar;  in fact, if the departure were unassailable on appeal, it may add weight to Simpson's claim that he was prejudicially misadvised.   An evidentiary hearing is required to ascertain the facts and the legal effect of those facts.   See e.g., Garcia v. State, 736 So.2d 89 (Fla. 4th DCA 1999).

AFFIRMED in part;  REVERSED in part.

GRIFFIN, J.

ANTOON, C.J., and W. SHARP, J., concur.