Mogford v. State , 2004 Fla. App. LEXIS 13657 ( 2004 )

PER CURIAM.

Appellant’s 3.850 motion for post-conviction relief, which was summarily denied, asserted that his counsel was ineffective for having misadvised him as to the maximum sentence he could receive and other things which induced him to plead guilty. Attached to his motion was his trial counsel’s response to the complaint appellant made to the Florida Bar. Counsel’s response refuted appellant’s allegations of misadvise; however, the response, which was not sworn, was not part of the record. Accordingly, the court should not have relied on the response to refute appellant’s factual allegations. Gholston v. State, 648 So.2d 192 (Fla. 1st DCA 1994); Flores v. State, 662 So.2d 1350 (Fla. 2d DCA 1995). Reversed.

WARNER, POLEN and KLEIN, JJ., concur.