Days v. State

637 So.2d 66 (1994)

Vincent D. DAYS, Appellant,
v.
STATE of Florida, Appellee.

No. 92-4367.

District Court of Appeal of Florida, First District.

May 18, 1994.

Appellant, pro se.

No appearance by the state.

WOLF, Judge.

Days appeals from an order summarily denying his motion for postconviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. Appellant alleges that his plea was not voluntary because of misinformation provided by his attorney concerning his eligibility for gaintime. There was no allegation by the appellant that he would not have entered the plea had he been given the correct information. Matthews v. State, 614 So.2d 25 (Fla. 1st DCA 1993). Without this allegation, the petition is deficient. Id. at 26.

Since appellant may be able to properly allege reliance on the incorrect advice of counsel, our affirmance is without prejudice to appellant to pursue a subsequent 3.850 motion on the grounds of ineffective assistance of counsel.

WEBSTER, J., concurs.

BOOTH, J., specially concurring with written opinion.

BOOTH, Judge, specially concurring.

I agree that the motion is fatally defective on the ground stated by the majority. On that basis we affirm the trial court's order. It should not be inferred from the "without prejudice" language of the opinion that the petition is otherwise sufficient.