Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-2680 _____________________________ ALTON EUGENE BROWN, JR., Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Bruce R. Anderson, Jr., Judge. October 16, 2020 TANENBAUM, J. Alton Eugene Brown, Jr. appeals the summary denial of his postconviction motion, which was filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Mr. Brown claimed that his guilty plea was effectively an involuntary one, and he sought to free himself of the enhanced, ten-year sentence that the trial court imposed because he was a habitual felony offender. By the time the postconviction court disposed of his motion, Mr. Brown had abandoned all but one of his claims and waived an evidentiary hearing. * The remaining claim asserted that the trial court failed * Mr. Brown, through counsel and following a colloquy with the court, abandoned two ineffective assistance of counsel claims to engage in a proper colloquy that would have ensured that Mr. Brown knew he faced an enhanced statutory maximum if he pleaded guilty. We do not reach the merits of the appeal on this issue, however, because, as it turns out, the claim was procedurally barred at the start. The postconviction court attached parts of the record to the summary denial. See Fla. R. Crim. P. 3.850(f)(5) (requiring that an order summarily denying postconviction relief attach those records conclusively showing that the defendant is not entitled to relief); cf. Levin v. State, 268 So. 3d 939, 941 (Fla. 1st DCA 2019) (reversing denial of rule 3.850 motion and remanding with instructions to attach records supporting application of a procedural bar if that is the basis for summary denial). Those record attachments include an order denying Mr. Brown’s timely motion to withdraw his plea, filed a few weeks after sentencing pursuant to Florida Rule of Criminal Procedure 3.170(l). According to that order, Mr. Brown had claimed he was “misadvised” about what his maximum penalty would be. The trial court considered the record and denied the motion because it determined that Mr. Brown “was made aware of the guidelines of a minimum sentence of fifteen (15) months and up to a maximum sentence of ten (10) years as a Habitual Felony Offender (HFO).” In the order, the trial court went on to conclude that Mr. Brown “knowingly, intelligently and voluntarily entered his plea.” This detailed rationale leaves us with no doubt as to the identity between the earlier claim and the one in Mr. Brown’s rule 3.850 motion. Both claims asserted involuntariness of the plea based on an ostensible lack of sufficient notice about the sentencing consequences of habitualization. Even though Mr. Brown pleaded guilty, his timely motion to withdraw the plea preserved his right to appeal directly whether that plea was a voluntary one on the grounds asserted. See Fla. R. App. P. 9.140(b)(2)(A)(ii)c. (allowing direct appeal of “an involuntary plea, if preserved by a motion to withdraw plea”); see also Fla. R. App. related to whether counsel had properly advised him as to potential sentencing consequences of a plea. 2 P. 9.020(h)(1)(I) (providing that a timely motion to withdraw a plea after sentencing tolls rendition for the purpose of appeal). Mr. Brown cannot seek postconviction relief based on a claim that he previously raised and could have pursued on direct appeal. See Fla. R. Crim. P. 3.850(c) (precluding postconviction relief “based on grounds that could have or should have been raised . . . if properly preserved, on direct appeal of the judgment and sentence”); see also Dooley v. State, 789 So. 2d 1082, 1083 (Fla. 1st DCA 2001) (on rehearing) (explaining “that if appellant had previously raised the identical claim in his motion to withdraw, then he was required to challenge the ruling on that claim by direct appeal,” such that the claim would be procedurally barred by rule 3.850). Summary denial of Mr. Brown’s postconviction motion was the correct outcome, albeit because the record conclusively showed that his involuntariness claim was procedurally barred. AFFIRMED. BILBREY and WINOKUR, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ William Mallory Kent and Ryan Edward McFarland of Kent & McFarland, Jacksonville, for Appellant. Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee. 3