RICHARDSON V. STATE
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2001 HENRY RICHARDSON, Petitioner, ** ** vs. CASE NO. 3D01-1320 ** THE STATE OF FLORIDA, ** Respondent. LOWER TRIBUNAL CASE NO. 99-26417 ** Opinion filed August 29, 2001. A Case of Original Jurisdiction - Habeas Corpus. Henry Richardson, in proper person. Robert A. Butterworth, Attorney General, and Barbara A. Zappi (Ft. Lauderdale), Assistant Attorney General, for respondent. Before LEVY, FLETCHER, and RAMIREZ, JJ. FLETCHER, Judge. Henry Richardson petitions this Court for a writ of habeas corpus. For the reasons explained below, we deny the writ and remand this case to the trial court to hold an evidentiary hearing on Richardson's ineffective assistance of counsel claim. Richardson claims his attorney failed to pursue an appeal for him as requested. There is nothing in the record to contradict this, and there is also no record of an express reservation transcript of of appeal the plea in the transcript. colloquy records the However, judge the telling Richardson that he waived his right to an appeal by taking the plea, Transcript at 128, and a few sentences later that "you [Richardson] have thirty days from today to contest the amount of today's sentence." Transcript at 129. This apparent contradiction may have confused the defendant regarding his ability to pursue an appeal. potential confusion. The State has acknowledged this We follow its recommendation and remand to the lower court for an evidentiary hearing on this matter. Richardson's remaining claims are without merit as they are conclusively refuted by the record. never received written notice of Richardson's claim that he the State's intent to habitualize and thus his plea was involuntary is belied by the record which shows that the State indeed filed a written notice of enhancement. Furthermore, this is not an issue cognizable on habeas but rather via rule 3.850 petition, and Richardson is still within (barely) the window for filing such a petition for relief. We deny the habeas petition without prejudice for defendant 2 to submit a rule 3.850 petition if he wishes to pursue withdrawal of his plea, remand the first issue to the lower court for an evidentiary hearing, and affirm all points. Affirmed in part, remanded in part. 3 remaining
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