Hickey v. State
Docket: No. 98-2411
Court: District Court of Appeal of Florida; March 18, 1999; Florida; State Appellate Court
Howard K. Hickey appeals the denial of his post-conviction motion under Florida Rule of Criminal Procedure 3.850. He raises four allegations: 1. His guilty plea was not made voluntarily. 2. His trial counsel was ineffective, coercing him into a plea agreement without a factual basis for the charges. 3. His trial counsel and the trial court failed to inform him that he was agreeing to a departure sentence, which would be the basis for imposing such a sentence. 4. His trial counsel was ineffective for not informing him about changes in witness testimony and for not allowing him to testify. The trial court found that the record conclusively refuted the first, second, and fourth allegations, attaching relevant portions of the record to its order. However, the court did not conclusively address the third allegation regarding the lack of advice about the departure sentence. As a result, the appellate court affirmed the trial court's decision on issues one, two, and four, but reversed and remanded on issue three. The appellate court requires the trial court to either attach additional record excerpts that disprove Hickey’s claim about the departure sentence or to conduct an evidentiary hearing if such records are not available. The decision concludes with the court affirming in part, reversing in part, and remanding for further proceedings. Judges Allen and Webster concur.