Opinion
No. 93-2728.
December 14, 1994.
An Appeal from the Circuit Court for Dade County; Leslie Rothenberg, Judge.
Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Fleur J. Lobree, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
Rogelio Rodriguez appeals an order summarily denying a Rule 3.850 motion and an order revoking probation. We reverse the order summarily denying Rodriguez post-conviction relief and remand for further proceedings. Rodriguez contends that he was not aware of the maximum penalty upon entry of his plea. Fla.R.Crim.P. 3.172(c)(1). The trial court concluded that Rodriguez "knew he was looking at substantial prison time upon a violation, a sentence in excess of twenty-seven years State Prison." The record fails to refute Rodriguez' claim. On remand, the trial court must conduct an evidentiary hearing. Griffin v. State, 644 So.2d 351 (Fla. 3d DCA 1994). We affirm the order revoking probation as modified. We strike the portion of the order finding that Rodriguez failed to submit timely for a drug test.
While I concur in the determination to afford the appellant an evidentiary hearing on his 3.850 claim, I would emphasize that, to establish his right to relief because the trial court did not inform him of the maximum possible penalty before accepting his original plea, see Fla.R.Crim.P. 3.172(c)(1), he will be required to demonstrate that he was prejudiced by that mistake, Fla.R.Crim.P. 3.172(i); that is, both that he did not otherwise know of the potential penalty and, as he swore under oath, that "he would not have entered into the plea" — to an extremely lenient sentence of community control and probation — if he had known. See Mickens v. State, 562 So.2d 856 (Fla. 1st DCA 1990); Baker v. State, 344 So.2d 597 (Fla. 1st DCA 1977).
NESBITT, J., concurs.