Marshall S. Vaughan v. State

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

MARSHALL S. VAUGHAN,

Appellant,

v. Case No. 5D16-4443

STATE OF FLORIDA,

Appellee.

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Opinion filed April 28, 2017

3.850 Appeal from the Circuit Court
for Citrus County,
Richard A. Howard, Judge.

Marshall S. Vaughan, Raiford, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Pamela J. Koller,
Assistant Attorney General, Daytona
Beach, for Appellee.

WALLIS, J.

Marshall S. Vaughn appeals the trial court's summary denial of his Second Motion

to Vacate and Set Aside a Sentence filed pursuant to Florida Rule of Criminal Procedure

3.850, in which he asserted three claims for relief. We affirm the trial court's denial of

Vaughn's second and third claims without further discussion. In his first claim, Vaughn

argued he involuntarily entered his plea because he was not informed about his possible
maximum sentence as a habitual felony offender. "[P]rior to acceptance of the plea: 1)

the defendant must be given written notice of intent to habitualize, and 2) the court must

confirm that the defendant is personally aware of the possibility and reasonable

consequences." Baker v. State, 12 So. 3d 281, 282 (Fla. 5th DCA 2009) (quoting Ashley

v. State, 614 So. 2d 486, 490 (Fla. 1993)). We find that the attached records do not

conclusively refute Vaughn's claim. Accordingly, we reverse the summary denial of the

first claim and remand for the trial court to either attach records or hold an evidentiary

hearing to conclusively establish that the trial court advised Vaughn of the consequences

of his habitualization.

AFFIRMED in part; REVERSED in part; and REMANDED with Instructions.

PALMER and BERGER, JJ., concur.

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