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702 So. 2d 303

Burnham v. State

District Court of Appeal of Florida

Decided December 15, 1997

District Court of Appeal of Florida · decided 1997-12-15

Cited by 2 later decisions — most recently October 2004

2 state decisions

Relies on 689 So. 2d 235 - State v. Leroux

Good law ✅— No negative treatment on recordhow we know

Decided 1997-12-15

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PER CURIAM.

¶1The defendant, Adrian Burnham, appeals the summary denial of his rule 3.850 motion for postconviction relief. He alleges that, in entering his plea of nolo contendere, he relied on his attorney’s erroneous advice that he would serve only about eighteen months in prison. The trial court denied the motion, finding that the written plea agreement, the transcript of the plea colloquy, and the transcript of the sentencing hearing conclusively showed that he was entitled to no relief.

¶2However, these portions of the record do not conclusively refute the instant claim of positive misadvice. See State v. Leroux, 689 So.2d 235 (Fla.1997).

¶3We therefore reverse the trial court’s order denying the defendant’s claim. On re*304mand, the trial court must either hold an evidentiary hearing or attach to its order those portions of the record that conclusively show that the defendant’s attorney did not give him positive misadvice concerning the length of his sentence.

¶4Reversed.

MICKLE, LAWRENCE and PADOVANO, JJ., concur.
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