Spears v. State , 912 So. 2d 694 ( 2005 )

912 So. 2d 694 (2005)

Iric V. SPEARS, Appellant,
v.
STATE of Florida, Appellee.

No. 2D05-1175.

District Court of Appeal of Florida, Second District.

October 26, 2005.

WHATLEY, Judge.

Iric V. Spears appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings.

Spears pleaded nolo contendere to several felony offenses, and on April 22, 2004, the trial court sentenced him to ten years' imprisonment, followed by ten years' probation. Additionally, Spears was ordered to pay restitution in the amounts of $136,327.64 to Community Bank of Northern Virginia and $8,529.91 to Citicorp Financial Services. In his motion for postconviction relief, Spears claims his plea was involuntary because he entered it under the mistaken assumption that the maximum sentence he would receive would be 49.8 months' imprisonment and restitution would not be imposed. Specifically, Spears asserts that he made this assumption based upon the assistant state attorney's representation that the maximum penalty would be 49.8 months' imprisonment and that the State would not seek restitution. Spears recited portions of the change of plea hearing transcript and portions of the signed plea form to support his claim.

The trial court denied Spears's motion and concluded that the record conclusively refuted Spears's allegations. However, the portions of the record that were attached to the order and relied upon by the court do not refute Spears's claim. Therefore, we reverse and remand for the trial court to either attach portions of the record that conclusively refute Spears's claim or to hold an evidentiary hearing. See Jones v. State, 893 So. 2d 713 (Fla. 2d DCA 2005).

Reversed and remanded.

CASANUEVA and CANADY, JJ., Concur.