COWART 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 JANUARY TERM, A.D. 2004 EDDIE L. COWART, Appellant, vs. ** ** ** THE STATE OF FLORIDA, Appellee. CASE NO. 3D03-740 ** LOWER TRIBUNAL NO. 98-35735 ** Opinion filed February 4, 2004. An appeal under Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Miami-Dade County, Jerald Bagley, Judge. Eddie L. Cowart, in proper person. Charles J. Crist, Jr., Attorney General, and Marni A. Bryson, Assistant Attorney General, for appellee. Before SCHWARTZ, C.J., and COPE and SHEVIN, JJ. PER CURIAM. Eddie Lee Cowart appeals an order denying his motion for postconviction relief. We remand for an evidentiary hearing (or attachment of record excerpts refuting his claim) on one issue only. As we interpret the motion, defendant-appellant Cowart contends that his trial counsel affirmatively misadvised him that he did not qualify as a habitual offender. The defendant maintains that based on this misadvice, he rejected a favorable twenty-fourmonth plea offer which had been made by the State. Upon conviction the court sentenced him to twenty years as a habitual offender. As the record now before us does not conclusively refute the defendant s claim, we remand for an evidentiary hearing on that issue only. See Fla. R. App. P. 9.141(b)(2)(D). We express no opinion on the merits of the claim. We affirm the trial court s rejection of the defendant s remaining claims. Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith. 2

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