DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

DIEGO PUERTAS OLIVA,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D13-3789

[July 23, 2014]

Appeal of order denying rule 3.850 motion from the Circuit Court for 

the Seventeenth Judicial Circuit, Broward County; Michael Robinson, 

Judge; L.T. Case No. 08-8322 CF10A.

Michelle Walsh of Michelle Walsh, P.A., Miami, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina 

Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for 

appellee.

PER CURIAM.

Diego Puertas Oliva appeals the summary denial of his rule 3.850 

postconviction motion. See Fla. R. Crim. P. 3.850. While we affirm the 

denial of ground two without comment, the record does not conclusively 

refute ground one, that counsel was ineffective in failing to advise him of 

his potential sentencing exposure.

Oliva was initially charged with DUI Manslaughter/Unlawful Blood 

Alcohol Level, DUI Manslaughter/Impairment, Vehicular Homicide, DUI 

with Property Damage, and Failure to Obey a Law Enforcement Officer. 

Oliva alleges that he entered into a negotiated no contest plea to DUI 

Manslaughter/Impairment and DUI with Property Damage whereby the 

state agreed to nolle prosse several of the counts and also cap his prison 

sentence at the bottom of the guidelines, which was 124.65 months, if 

Oliva pled open. Counsel advised him that he could also seek a downward 

departure. At no time, states Oliva, was he informed of the possibility of 

probation in addition to the agreed-upon cap. The court ultimately 
2

sentenced him to 124.65 months imprisonment, for DUI Manslaughter, 

with a 4-year mandatory minimum, to be followed by 4.5 years’ probation.

At issue is Oliva’s claim that he was not advised of the possibility that he 

could receive probation in addition to the maximum agreed-upon prison 

sentence. He relies upon Eggers v. State, 624 So. 2d 336 (Fla. 1st DCA 

1993), for the proposition that a defendant is entitled to relief when not 

informed of the probationary component to a sentence when entering a 

plea. The state, however, urges this court to affirm based upon this being

an open plea. At all times during the plea hearing and subsequent 

proceedings, the agreement was referred to as an open plea. Oliva, 

however, argues that it was a hybrid plea based upon the agreed 

sentencing cap, his opportunity to file a downward departure motion, and 

the state’s having nolle prossed two charges. Although he was unsure how 

much time the court would choose to impose, his understanding was that 

it would not exceed 124.65 months pursuant to the agreement. In other 

words, it was “open” in the sense that the court could consider something 

less than the cap. Probation was not discussed on the record until the 

day of sentencing.

Because the record before us does not refute Oliva’s understanding that 

his maximum sentencing exposure, including probation, could not exceed 

124.65 months based upon the agreed-upon sentencing cap, we reverse 

and remand for the trial court to conduct an evidentiary hearing on this 

claim.

WARNER, LEVINE and KLINGENSMITH, JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.