ANTONIO JACKSON v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

ANTONIO JACKSON, Appellant,

v.

STATE OF FLORIDA, Appellee.

No. 4D19-2804

[January 8, 2020]

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Thomas Michael Lynch V, Judge; L.T. Case No. 16-3099CF10A.

Kenneth D. Padowitz, Fort Lauderdale, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Allan R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

We reverse the trial court’s order summarily denying Appellant’s timely motion for postconviction relief. Appellant stated a facially sufficient claim that he would not have entered his plea but for his attorney’s mistaken advice that the conviction could be expunged from his record. Hall v. State, 51 So. 3d 1283 (Fla. 4th DCA 2011). “[A]ffirmative misadvice regarding a collateral consequence may render [a] plea involuntary.” Hernandez v. State, 204 So. 3d 128, 130 (Fla. 4th DCA 2016). As in Hall, “this is not a case involving the use of the conviction to enhance a sentence, nor is it a situation where the movant waited for any adverse consequence associated with counsel’s alleged advice.” 51 So. 3d at 1284 (distinguishing Phillips v. State, 960 So. 2d 29 (Fla. 4th DCA 2007)). Appellant timely sought relief within the two-year time limit of Florida Rule of Criminal Procedure 3.850. See Marshall v. State, 983 So. 2d 680 (Fla. 4th DCA 2008) (holding that claims such as this must be brought within the two-year time limit).

Accordingly, this matter is remanded for further proceedings. The trial court shall attach records that conclusively refute Appellant’s claim or conduct an evidentiary hearing, where it can determine whether a

reasonable probability exists that Appellant would not have entered the plea and would have proceeded to trial but for the misadvice. See Hill v. Lockhart, 474 U.S. 52 (1985).

Reversed and remanded for further proceedings. LEVINE, C.J., WARNER and CIKLIN, JJ., concur.

• • * * Not final until disposition of timely filed motion for rehearing.