Tampa., Florida - Criminal Defense lawyer represented defendant with appealing the denial of his petition for writ of habeas corpus.

Jackson alleged "that counsel failed to convey or advise him of

the facts of the charge and the laws in relation to the charge before

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sentencing nor did counsel convey or advise him or the sentencing

judge of any mitigation in relation to the facts of the case."

While habeas corpus is not an appropriate vehicle for seeking

postconviction relief, see Hildwin v. Dugger, 654 So. 2d 107, 111

(Fla. 1995) ("Habeas corpus is not to be used for additional appeals

of issues that could have been, should have been, or were raised in

a 3.850 motion." (emphasis omitted)), the court should have treated

Jackson's petition as a postconviction motion timely filed under

Florida Rule of Criminal Procedure 3.850, see Houghtaling v. State,

670 So. 2d 1019, 1019 (Fla. 2d DCA 1996) ("[W]e reverse and

remand for the trial court to treat Houghtaling's petition as a timely

filed motion for postconviction relief."). To the extent Jackson's

claims of ineffective assistance of counsel were not insufficient on

the face of the motion, the trial court was required to either attach

portions of the record conclusively refuting his claims or grant him

an evidentiary hearing. See Fla. R. Crim. P. 3.850(f); cf. Pylant v.

State, 134 So. 3d 533, 534 (Fla. 5th DCA 2014) ("Affirmative

misadvice by counsel as to gain time or the actual sentence length

is a cognizable basis for postconviction relief, and an evidentiary

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hearing must be held unless the record conclusively refutes the

claim.").

The portions of the record Jackson attached to his motion

appear to conclusively refute that his attorney misadvised him

"before sentencing" because they indicate that he was sentenced

pursuant to a negotiated plea agreement. In the context of the

paragraphs of his motion surrounding the claim in question, it is

apparent that Jackson's argument—which was buried in a claim

with a heading referencing double jeopardy and ex post facto

violations—was limited to advice he received immediately prior to

and in preparation for the sentencing hearing, as opposed to advice

he received prior to entering into the negotiated plea. And the

argument included the assertion that Jackson's counsel was

deficient for failing to adequately argue mitigation to the sentencing

judge. As such, Jackson's argument cannot be read as challenging

the voluntariness of his negotiated plea due to ineffective assistance

of counsel, but rather as a claim of misadvice and deficient

advocacy with regard to sentencing—a claim that would be

conclusively refuted by a record that reflected the sentence was a

product of a plea bargain as opposed to a discretionary decision of

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the court upon which counsel's performance could have had some

influence.

This court has applied the tipsy coachman doctrine in

postconviction cases. See, e.g., Jacobson v. State, 238 So. 3d 865,

867 (Fla. 2d DCA 2018) (citing Robertson v. State, 829 So. 2d 901,

906 (Fla. 2002)). And although the trial court did not attach the

negotiated plea to its order denying the petition for habeas corpus,

it was included as an attachment to Jackson's motion. See

generally Tribbitt v. State, 47 Fla. L. Weekly D969 (Fla. 2d DCA May

4, 2022) ("[W]hen the trial court denies postconviction relief without

conducting an evidentiary hearing, 'this [c]ourt must accept [the

defendant's] factual allegations as true to the extent they are not

refuted by the record.' " (emphasis added) (quoting Tompkins v.

State, 872 So. 2d 230, 238 (Fla. 2003))); Harrell v. State, 47 Fla. L.

Weekly D958 (Fla. 5th DCA Apr. 29, 2022) ("To uphold the

summary denial of a claim under rule 3.850, the claim must be

either legally insufficient, or it must be able to be conclusively

resolved as a matter of law or by reliance upon the records in the

case." (emphasis added)).

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Nevertheless, Florida Rule of Criminal Procedure 3.850(f)(5)

unambiguously and unqualifiedly states that "[i]f the denial [of a

rule 3.850 motion] is based on the records in the case, a copy of

that portion of the files and records that conclusively shows that

the defendant is entitled to no relief shall be attached to the final

order." (Emphasis added). See Ingram v. State, 291 So. 3d 1009,

1011 (Fla. 5th DCA 2020) ("When the summary denial is based on

the records in the case, a copy of that portion of the files and

records that conclusively show that the defendant is entitled to no

relief must be attached to the final order."). Therefore, we must

reverse and remand for further proceedings. See Simeon v. State,

273 So. 3d 157, 158–59 (Fla. 3d DCA 2019) ("[A]lbeit somewhat

buried in his motion, Simeon did raise a facially sufficient claim of

ineffective assistance of counsel, and the trial court's order did not

address this claim. . . . If, on remand, the trial court denies the

claim without conducting an evidentiary hearing, then, in its order,

the trial court should attach those portions of the record

conclusively showing Simeon is not entitled to relief." (footnotes

omitted)).

If the postconviction court concludes that Jackson's

claim is conclusively refuted by the record, it must attach portions

of the record that support such a conclusion.



Affirmed in part, reversed in part, and remanded.