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


CURRAN FRITZ LANE,

              Appellant,

 v.                                                     Case No. 5D16-3679

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed August 4, 2017

Appeal from the Circuit Court
for Marion County,
Anthony M. Tatti, Judge.

Henry G. Gyden, of Gyden Law Group,
Tampa, and Warren Hope Dawson, of
Dawson & Associates, Tampa, for
Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Allison L. Morris,
Assistant Attorney General, Daytona
Beach, for Appellee.

ORFINGER, J.

       Curran Fritz Lane timely appeals the denial of his motion to withdraw plea, arguing

that his plea was involuntary because he was unaware of a valid defense to the alleged

violation of probation. We conclude Lane is entitled to an evidentiary hearing and reverse.
       After Lane was originally placed on sexual offender probation with electronic

monitoring, an affidavit of violation of probation was filed, alleging that he violated his

probation when his electronic monitor failed to record his location for twenty-six minutes.

Lane admitted the violation at his arraignment. He explained that he was only outside the

range of the GPS because when he came home from work, he found that continuous rain

from Tropical Storm Colin caused his pool and backyard to overflow with water,

threatening to enter the home through the back doors. Lane claimed that he placed the

GPS unit on the counter to keep it dry while he went outside to prevent the home from

flooding. Despite this explanation, the trial court revoked Lane’s probation and sentenced

him to eighty-six months in state prison. Lane timely filed a motion to withdraw his plea

pursuant to Florida Rule of Criminal Procedure 3.170(l), claiming, among others, that his

plea was involuntary as his counsel had not explained to him that he had an available

defense because his violation had to be willful and substantial. The trial court denied the

motion without an evidentiary hearing.

       Florida Rule of Criminal Procedure 3.170(l) applies to motions to withdraw a plea

made after sentencing and provides:

           A defendant who pleads guilty or nolo contendere without expressly
           reserving the right to appeal a legally dispositive issue may file a
           motion to withdraw the plea within thirty days after rendition of the
           sentence, but only upon the grounds specified in Florida Rule of
           Appellate Procedure 9.140(b)(2)(A)(ii)(a)–(e) except as provided by
           law.

Lane’s claim, that his plea was involuntary, is a recognized ground under rule

9.140(b)(2)(A)(ii).

       Once a sentence has been imposed, a defendant must demonstrate manifest

injustice or prejudice in order to withdraw a guilty plea. “This is a more stringent standard



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than a motion to withdraw a plea filed before sentencing; the burden falls on the defendant

to prove that withdrawal is necessary to correct the manifest injustice.” Powell v. State,

, 55 (Fla. 5th DCA 2006). A defendant who files a facially sufficient motion

to withdraw a plea is entitled to an evidentiary hearing on the issue unless the record

conclusively refutes the allegations. Puentes v. State, 

, 921 (Fla. 3d DCA

2011); Woodly v. State, 

, 196 (Fla. 4th DCA 2006); Snodgrass v. State,

, 508 (Fla. 4th DCA 2003). If the trial court does not hold an evidentiary

hearing, the allegations of the defendant's motion must be taken as true, except to the

extent that they are conclusively rebutted by the record. 

.

           Here, Lane stated a colorable claim for relief under Florida law, which requires that

pleas be voluntarily and knowingly entered. The trial court erred in denying Lane’s motion

without holding an evidentiary hearing because nothing in the record conclusively shows

that Lane was not entitled to relief on this claim. See e.g., Panchu v. State, 

, 1245-46 (Fla. 4th DCA 2009) (holding that defendant was entitled to evidentiary

hearing where she stated colorable claim in rule 3.170(l) motion that her plea was not

voluntarily, knowingly, and intelligently entered when she alleged that she received no

advice or inadequate advice as to available defenses to her charges); Daniel v. State,

, 661 (Fla. 2d DCA 2004) (reversing denial of rule 3.170(l) motion to

withdraw plea that alleged counsel misadvised him regarding sentencing, and remanding

for evidentiary hearing because record failed to show that defendant was not entitled to

relief).

           We find no merit in Lane’s remaining claims of error. We affirm, in part, and

reverse, in part, the trial court’s order denying Lane’s rule 3.170(l) motion to withdraw his




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plea. On remand, the trial court must hold an evidentiary hearing on Lane’s claim of

failure to advise of an available defense.

       AFFIRMED in part; REVERSED in part; and REMANDED.


WALLIS and EDWARDS, JJ., concur.




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