Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-135 _____________________________ MICHAEL JOSEPH HARRIS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Russell Healey, Judge. April 29, 2020 WINOKUR, J. Michael Harris entered an open guilty plea to organized fraud, see § 817.034(4)(a)2., Fla. Stat., and was adjudicated guilty and sentenced to five years in prison followed by four years of probation. Harris filed a postconviction motion alleging six reasons why his trial counsel was ineffective, and the trial court summarily denied the motion. We affirm as to five grounds without further comment, but reverse and remand on ground one. To prevail on a claim that counsel was ineffective, a defendant must demonstrate that counsel’s performance was both deficient and prejudicial; counsel’s errors must have been so serious that the constitutional guarantee of counsel was not satisfied, and this deficiency must deprive the defendant of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). A legally sufficient claim of ineffectiveness requires an evidentiary hearing unless it is conclusively refuted by the record. See Franqui v. State, 59 So. 3d 82, 95 (Fla. 2011). In ground one, Harris claimed that his trial counsel advised him that he would likely have his adjudication withheld if he entered a guilty plea, that a withhold was very important to him because he did not want to become a convicted felon and lose his civil rights, and that this advice was the reason he entered the plea. In fact, the trial court was prohibited from withholding adjudication because Harris had a prior withhold of adjudication from a felony charge. See § 775.08435(1)(b), Fla. Stat. The State argued, and the postconviction court found, that any misadvice by counsel did not prejudice Harris because he was advised by the court at the plea colloquy that he could be sentenced to fifteen years in prison and because the prior withhold was not a factor that the trial court considered in imposing his sentence. We reject the trial court’s reasoning. The relevant question is not whether the alleged misadvice was a factor in the sentence imposed on Harris. Rather, the court must determine whether “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Harris claims that he would not have entered the guilty plea absent counsel’s misadvice regarding a potential withhold of adjudication. This claim is not refuted by the record. Harris’ claim may be distinguished from one where counsel’s alleged misadvice was contradicted by the trial judge at the plea colloquy, and the defendant swore he understood the trial judge’s advice. See, e.g., Alfred v. State, 998 So. 2d 1197, 1199 (Fla. 4th DCA 2009) (finding the defendant’s claim that counsel misadvised him on sentencing conclusively refuted by the plea colloquy; “[e]ven assuming that counsel did misadvise Alfred that he would receive a sentence no greater than fifteen years, any prejudice was cured by the trial court at the plea colloquy”); Bowers v. State, 862 So. 2d 772, 773 (Fla. 4th DCA 2003) (holding that the defendant’s claim that “counsel affirmatively misadvised him that he would receive no more than 82 months in prison” was conclusively refuted by the colloquy transcript showing that he “was made 2 aware he faced a maximum penalty of a hundred years in prison”). In contrast, the misadvice Harris alleged was not refuted by his representations at the plea colloquy. We AFFIRM the summary denial of Harris’ postconviction motion except as to ground one, which we REVERSE and REMAND for the postconviction court to hold an evidentiary hearing or attach records that conclusively refute this claim. RAY, C.J., and KELSEY, J., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Alex King of Fallgatter & Catlin, P.A., Jacksonville, for Appellant. Ashley Moody, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee. 3