Burns v. State, 5D15–3419.

190 So.3d 257 (Mem)

Tommy BURNS, Appellant,

v.STATE of Florida, Appellee.

No. 5D15–3419.

District Court of Appeal of Florida, Fifth District.

May 6, 2016.

Tommy F. Burns, Indiantown, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Appellee.

COHEN, J.

Tommy Burns appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Burns claims that trial counsel affirmatively misadvised him that the sentences for his two convictions would run concurrently, however, the Department of Corrections is requiring he serve the sentences consecutively. He alleges that his plea was therefore not voluntary and that he would not have entered it but for counsel's misadvice.

The trial court ruled that Burns's motion was untimely filed. The State properly concedes this ruling was erroneous. Additionally, the sentencing orders attached to the trial judge's order do not refute the allegations raised.

Burns was sentenced in the two cases on separate days. The trial judge attached the sentencing orders from both cases. The trial court¹ specified in the first case that the sentence was to run concurrently to any and all active sentences. The second case, which is the subject of this appeal, does not designate how the sentence was to be served. As a result, pursuant to section 921.16, Florida Statutes (2012), the sentence is to be served consecutively. While the attachments might reflect the...