William Maurice RAMSEY, Appellant, v. STATE of Florida, Appellee, 408 So. 2d 675

GLICKSTEIN, Judge. This is an appeal from an order denying a motion to vacate judgment and sentence filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand. Appellant was charged with aggravated assault and possession of a short-barreled shotgun. He first pled not guilty, but then changed his plea on April 7, 1980 when his counsel informed the trial court that pursuant to negotiations with the prosecution appellant would plead no contest to the charge of aggravated assault and would be sentenced to imprisonment for three years. A nolle prosequi was to be entered on the other charge.

At the hearing on the change of plea appellant waived a pre-sentence investigation and the trial court sentenced him to imprisonment for three years. The trial judge recited on three separate occasions that appellant was being sentenced to a mandatory minimum of three years’ imprisonment.

The following took place on one of the occasions: THE COURT: Have any promises been made to you other than the State will nolle prosequi Count II and that you will sentenced [sic] on your plea to be adjudicated guilty of aggravated assault and sentenced to three year’s prison and that is a mandatory minimum sentence which means you have to serve the three calendar years before you are eligible for parole? Do you understand that? MR. RAMSEY: Yes.

Notwithstanding the foregoing, within seven weeks of the sentencing appellant informed the trial court by letter that he learned upon imprisonment that he would not be eligible for parole, work release or gain time for three years although he had been told by his attorney that in return for a plea of no contest he would receive a “regular” sentence of three years. He ultimately obtained private counsel who filed the motion now being considered. In support of the motion, appellant filed affidavits signed by his trial counsel and himself.

Trial counsel swore that he had erroneously advised appellant that the sentence being imposed would not require appellant to spend three years in prison before being paroled or being eligible for “good time” consideration and that because of this erroneous advice appellant believed he would not spend three years in prison before being eligible for parole.

Appellant’s affidavit recited that his attorney advised him that the mandatory minimum provisions of his sentence did not require him to serve three years before being eligible for parole and that had he known at the change of plea what he had since learned he would not have changed his plea. The test to be applied in such circumstances is recited in Thompson v.

State, 351 So.2d 701 (Fla.1977), cert. denied 435 U.S. 998, 98 S.Ct. 1653, 56 L.Ed.2d 88 (1978) wherein the Florida Supreme Court held: “The defendant has established to our satisfaction that hé was prejudiced by an honest misunderstanding which contaminated the voluntariness of the pleas.” See also Costello v. State, 260 So.2d 198 (Fla.1972); Richmond v. State, 375 So.2d 1132 (Fla. 2d DCA 1979). Whether appellant can meet this test is best determined by the trial court after consideration of testimony from appellant and his trial attorney rather than by this court on the basis of affidavits only.

Accordingly, we reverse the judgment and remand the cause to the trial court for an evidentiary hearing on the matters raised by appellant’s motion. REVERSED AND REMANDED. ANSTEAD, J., concurs specially with opinion. HURLEY, J., dissents without opinion.