Kropa v. State

WHATLEY, Judge.

Robert Lewis Kropa, Jr., appeals the summary denial of his motion for postcon-viction relief and amended motion for post-conviction filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

On January 28, 2005, Kropa admitted to violating his probation in circuit court case numbers CF95-004759 and CF95-004760 and pleaded guilty to grand theft in circuit court case number CF04-007517. Kropa was sentenced as a habitual felony offender to five years’ prison, followed by two years’ community control on the violation of probation cases and to five years’ prison on the grand theft charge.

On January 11, 2006, Kropa filed a timely rule 3.850 motion raising one claim of ineffective assistance of counsel for misad-vising him regarding the length of sentence he would serve in prison. Kropa specifically states that he was misled to believe that 102 months of prison credit, the time Kropa previously served in jail on his violation of probation cases, would be applied to his grand theft case. On March 16, 2006, Kropa filed a motion for leave to amend and a timely amendment to his rule 3.850 motion requesting to add a claim that counsel rendered ineffective assistance by erroneously requesting that the trial court add a five-year prison term to his violation-of-probation sentence.

We affirm the summary denial of Kro-pa’s amended motion. However, in its order, the postconviction court failed to address Kropa’s originally stated claim that counsel misadvised him regarding the length of the sentence he would serve. Accordingly, we reverse the order with respect to Kropa’s rule 3.850 motion, and we remand for the postconviction court to consider that motion. On remand, the postconviction court must either attach portions of the record to its order demonstrating that Kropa is not entitled to relief or conduct an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and LaROSE, JJ„ Concur.