BROWN v. STATE (2000)

On May 11, 1990, appellant pled guilty to second degree murder, grand theft, and attempted robbery.   He was sentenced to life imprisonment.

In June, 1999, he filed for post-conviction relief, arguing that his negotiated plea provided for a non-guidelines sentence that would make him eligible for parole.   The plea colloquy attached to the motion demonstrates that the court recognized that the sentence was being designated a pre-guidelines sentence, and that defense counsel stated that appellant was being “sentenced under the old system eligible for parole.”   On January 6, 1999, the Department of Corrections informed appellant that he was parole ineligible.

Appellant's post-conviction relief motion is not ripe at this time.   Before trying to set aside his plea, appellant must litigate the correctness of the Department's determination that he is ineligible for parole.   Appellant has not yet demonstrated that he will be unable to get the benefit of the plea bargain, that the Department is correct in its determination that he is parole ineligible.   He must first seek relief through administrative channels and, if unsuccessful, through a petition for mandamus to the circuit court.   See Johnson v. Florida Parole & Probation Comm'n, 543 So.2d 875 (Fla. 4th DCA 1989), disapproved on other grounds, Sheley v. Florida Parole Comm'n, 720 So.2d 216 (Fla.1998).

As to appellant's motion to correct sentence, we agree with the state that the sentence was not illegal under either Rule 3.850 or 3.800(a).

The defendant was sentenced to life in prison in 1990 for a crime that occurred in 1989.   Pursuant to the negotiated plea, the sentence was imposed under pre-guidelines (pre-1993) law, and the transcript of the plea hearing reveals that defense counsel represented at the hearing that appellant was being “sentenced under the old system eligible for parole,” and that appellant would be so eligible.   In 1998, appellant was informed upon request to DOC that he was ineligible for parole.   He immediately moved for postconviction relief, claiming that his counsel was ineffective in advising him that he would not be eligible for parole, and that his attorney misrepresented the ability of the court to sentence appellant under the 1983 law for a 1989 crime.   The trial court denied the motion as untimely.

I would reverse and require a hearing on the issue.   I conclude that Florida Rule of Criminal Procedure 3.850(b)(1) applies, as the facts on which the claim is predicated, namely the attorney's erroneous advice, were unknown to the claimant within the two-year requirement of the rule.   Whether that fact could have been ascertained by the exercise of due diligence is also a factual question that requires an evidentiary hearing.

Finally, I do not think that the exhaustion of administrative remedies is necessary when the relief requested is a withdrawal of the plea based upon misrepresentation of counsel.   Cf. Tal-Mason v. State, 700 So.2d 453 (Fla. 4th DCA 1997).

PER CURIAM.

GROSS and TAYLOR, JJ., concur. WARNER, C.J., dissenting with opinion.