JULIO S. CENDEJAS, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit
Court for Polk County; Neil A. Roddenbery, Judge.
S. Cendejas, pro se.
Cendejas challenges the order summarily denying his
postconviction motion filed pursuant to Florida Rule of
Criminal Procedure 3.850. We reverse the denials of claims
two, three, and four and remand for further proceedings. We
affirm the denial of claim one without comment.
Cendejas was charged with ten counts of trafficking in
various narcotics; possession of a structure used for
trafficking, sale, or manufacture of a controlled substance;
possession of drug paraphernalia; armed trafficking in
amphetamine; and possession of a firearm by a convicted
felon. He entered a negotiated guilty plea to counts two,
three, five, six, eight, and nine, and the State entered a
nolle prosequi on counts one, four, seven, and ten. On counts
two, five, and eight, Mr. Cendejas was sentenced to
concurrent fifteen-year prison terms, to be followed by five
years' probation on each count. He also received
mandatory minimum terms of ten years and three years on count
eight pursuant to sections 775.087(2) and 893.135(1), Florida
Statutes (2015). He was sentenced to time served on counts
three, six, and nine. Mr. Cendejas filed a motion for
postconviction relief, in which he raised three claims of
ineffective assistance of trial counsel and one claim of
review the order summarily denying Mr. Cendejas' motion
de novo. Sanchez v. State, 210 So.3d 252, 254 (Fla.
2d DCA 2017). We review a postconviction court's summary
denial of postconviction claims "to determine whether
the claims are legally sufficient and whether they are
conclusively refuted by the record." Watson v.
State, 34 So.3d 806, 808 (Fla. 2d DCA 2010) (quoting
Griggs v. State, 995 So.2d 994, 995 (Fla. 1st DCA
2008)). "When a postconviction court summarily denies a
defendant's motion without an evidentiary hearing, an
appellate court 'must accept a defendant's factual
allegations as true to the extent they are not refuted by the
record.'" Balmori v. State, 985 So.2d 646,
649 (Fla. 2d DCA 2008) (quoting Floyd v. State, 808
So.2d 175, 182 (Fla. 2002)).
plead a claim of ineffective assistance of counsel, Mr.
Cendejas was required to allege facts that show that
counsel's performance was deficient and that
counsel's deficient performance prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
To satisfy the prejudice prong in the context of a guilty
plea, Mr. Cendejas had to allege that but for counsel's
ineffectiveness there was a reasonable probability that he
would have insisted on going to trial. See Campbell v.
State, 139 So.3d 490, 494 (Fla. 2d DCA 2014) (citing
Cousino v. State, 770 So.2d 1258, 1260 (Fla. 4th DCA
claim two, Mr. Cendejas argued that his plea was involuntary
"due to counsel's patently deficient failure to
properly inform him in advance that the agreed upon plea
offer ha[d] been enhanced to a much harsher sentence."
More specifically, he alleged that while he and trial counsel
had discussed his entering a guilty plea and receiving
fifteen-year sentences for counts two, five, and eight, he
was not advised of the probationary terms or mandatory
minimum sentences. He claimed that had he known he would
receive mandatory minimum and probationary terms, he would
not have entered the plea.
misadvice regarding the length of a sentence may constitute a
basis for postconviction relief. State v. Leroux,
689 So.2d 235, 236 (Fla. 1996); Cherry v. State, 837
So.2d 597, 598 (Fla. 2d DCA 2003) ("A defendant may seek
to withdraw his plea on the ground that it was involuntary
due to reliance on counsel's misadvice or
misrepresentation regarding the length of a sentence or the
amount of time the defendant would serve.");
Townsend v. State, 927 So.2d 1064, 1065 (Fla. 4th
DCA 2006) ("A mandatory minimum sentence is a direct
consequence of a defendant's plea, and the failure to
advise a defendant of this consequence renders a plea
involuntary." (quoting Thornton v. State, 747
So.2d 439, 441 (Fla. 4th DCA 1999))). Because Mr. Cendejas
filed a facially sufficient claim, the only issue before us
is whether the claim was conclusively refuted by the record.
the postconviction court relied only on the signed plea form
to summarily deny Mr. Cendejas' claim, finding that the
mandatory minimum and probationary terms were "clearly
contained within the written plea agreement, signed by"
Mr. Cendejas. This court has held, however, that "the
existence of a signed, written plea agreement, by itself, is
insufficient to refute a defendant's claim" that his
plea was entered involuntarily. Rivera v. State, 746
So.2d 542, 542 (Fla. 2d DCA 1999) (citing McCallum v.
State, 591 So.2d 318, 319 (Fla. 4th DCA 1991)); see
also Cox v. State, 974 So.2d 474, 475 (Fla. 2d DCA 2008)
(reversing and remanding summary denial of postconviction
claim that plea was involuntary because "a signed,
written plea agreement, standing alone, is insufficient to
refute a defendant's claim that he misunderstood the
terms of the plea agreement or that no other promises were
made to induce the plea").
waiver of rights form can only refute a defendant's claim
of involuntary plea if the trial court conducted a proper
plea colloquy and determined that the defendant understood
the form." Campbell, 139 So.3d at 494 (holding
that the waiver of rights form signed by the defendant was
insufficient to conclusively refute his claims that his plea
was involuntary because the transcript of plea hearing
reflected that the trial court failed to conduct proper
inquiry); see also Townsend, 927 So.2d at 1066
(rejecting the State's argument that the appellant's
claim was conclusively refuted by the signed, written plea
form containing the three-year mandatory minimum sentence
because the record reflected that the "trial court made
no effort to determine if the defendant could read the form,
had the requisite level of education or mental capacity to
understand the form, or whether the form had been read or
explained to him"). Without a transcript of the plea
colloquy, we cannot know whether the plea was voluntarily
entered. Thus, because the postconviction court attached only
the signed plea agreement, claim two is not conclusively
refuted by the record. Accordingly, we reverse the denial of
claim two and remand for the postconviction court to either
attach portions of the record that conclusively refute the
claim or to conduct an evidentiary hearing.
Cendejas argued in claim three that trial counsel was
ineffective for failing to object to the imposition of the
ten-year mandatory minimum sentence imposed on count eight
for his possession of a firearm, see §
775.087(2)(a)(1)(q), and for failing to reserve his right to
appeal issues that he would be entitled to raise in the
appellate court. He further claimed that he entered into plea
negotiations "with the reasonable belief that his right
to appeal any and all dispositive issues was to be
denying the claim, the postconviction court again relied
solely on the plea agreement, specifically pointing to the
provision that stated Mr. Cendejas understood that by
entering a plea without reserving the right to appeal, he was
waiving his right to appeal all matters. The court further
found that to the extent Mr. Cendejas was arguing that trial
counsel should have challenged the factual basis for the
charges to which he pleaded, Mr. Cendejas could not
"accept the benefit of the plea wherein the State nolle
prossed certain counts in exchange for the ...