William Faiella v. State

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         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED


WILLIAM FAIELLA,

              Appellant,
 v.                                                      Case No. 5D16-2446

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed November 4, 2016

3.850 Appeal from the Circuit
Court for Hernando County,
Stephen E. Toner, Jr., Judge.

William Faiella, Crawfordville, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Bonnie Jean Parrish,
Assistant Attorney General, Daytona
Beach, for Appellee.


PER CURIAM.

       William Faiella (the defendant) appeals the final order summarily denying his

motion seeking post-conviction relief. See Fla. R. Crim. P. 3.850. Because ground one

of the defendant's motion is sufficiently pled and not refuted by the record, we reverse the

summary denial of ground one. We affirm as to all other grounds.

       In ground one of his motion, the defendant alleged that defense counsel rendered

ineffective assistance of counsel by improperly advising him that he was not subject to
Florida's Civil Commitment of Sexually Violent Predators Act (commonly known as the

Jimmy Ryce Act) when, in fact, he may have been. See §§ 394.901-.931, Fla. Stat.

(2012). The post-conviction court summarily rejected this claim, ruling that civil

commitment is a collateral consequence of entering a plea and, therefore, defense

counsel was not required to advise the defendant of such a consequence. This ruling was

erroneous. See Colombo v. State, 972 So. 2d 1101, 1102 (Fla. 1st DCA 2008) (holding

defendant's claim of affirmative misadvice regarding consequences under the Jimmy

Ryce Act established a facially sufficient claim of ineffective assistance of counsel).

Additionally, the post-conviction court ruled that relief was not available to the defendant

because the written negotiated plea agreement contained a paragraph regarding civil

commitment. However, the paragraph in the agreement concerning civil commitment

does not refute the defendant's claim.

       Accordingly, we reverse the summary denial of ground one and remand for the

post-conviction court to either conduct an evidentiary hearing or attach portions of the

record that conclusively refute the claim.

       AFFIRMED in part; REVERSED in part; and REMANDED.

PALMER, COHEN and LAMBERT, JJ., concur.




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