FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D23-1150

LT Case Nos. 2018-306213-CFDB

 2018-306375-CFDB

 2018-306413-CFDB

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DEVON MARQUISE DAVIS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Volusia County.

Raul A. Zambrano, Judge.

Devon M. Davis, Raiford, pro se.

No Appearance for Appellee.

October 20, 2023

LAMBERT, J.

Devon Marquise Davis appeals the summary denial of his 

amended motion for postconviction relief filed under Florida Rule 

of Criminal Procedure 3.850, in which he raised five grounds. We 

affirm the postconviction court’s denial of grounds two, three, and 

five of the amended motion without further discussion. For the 
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following reasons, we reverse the summary denial of grounds one 

and four and remand for further proceedings. 

Davis was charged in three cases below with committing a 

total of four felonies. The cases were resolved by a negotiated, 

global plea agreement with the State, with Davis pleading no 

contest to three of the counts, as charged, and to one lesser charge 

of attempted carjacking. Although the trial court imposed the 

parties’ agreed-upon sentences, Davis nevertheless appealed; and 

his judgments and sentences were affirmed without opinion. 

Davis v. State, 289 So. 3d 911 (Fla. 5th DCA 2020). 

Turning to the present proceeding, in ground one of his 

amended motion, Davis alleged that his counsel was ineffective for 

failing to investigate viable defenses to the charges and in not 

taking the depositions of various witnesses and one of the victims. 

In ground four, Davis alleged that his counsel had failed to advise 

him that his plea to the twenty-five-year prison sentence on the 

charge of aggravated battery with a firearm causing great bodily 

harm was to a mandatory minimum term and that his counsel had 

misadvised him that he would be eligible for gain time. 

In summarily denying Davis’s amended motion, the 

postconviction court’s one-page order adopted the State’s response 

to the motion. The State’s response—which included copies of the 

information filed in each case, the State’s notice of its intent to seek 

habitual felony offender sentencing, plus copies of the written plea 

agreement and the transcript of the change of plea hearing—was 

attached to the denial order. Our review of this summary denial 

is de novo. See State v. Coney, 845 So. 2d 120, 137 (Fla. 2003).

To uphold a summary denial of a legally sufficient claim 

brought under rule 3.850, the claim must be conclusively resolved 

as a matter of law or by reliance upon the records in the case. See

Fla. R. Crim. P. 3.850(f)(5). Additionally, an appellate court is 

required to accept a defendant’s factual allegations in the motion 

as true, to the extent that they are not refuted by the record. Peede 

v. State, 748 So. 2d 253, 257 (Fla. 1999).

As Davis sought relief for ineffective assistance of counsel 

following a plea, his burden was to show that, but for counsel’s 
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errors, there is a reasonable probability that he would not have 

pleaded guilty or no contest and would have insisted on going to 

trial. See Brazeail v. State, 821 So. 2d 364, 367–68 (Fla. 1st DCA 

2002). When determining whether this reasonable probability 

exists, the postconviction court is to look at the totality of the 

circumstances—including the plea colloquy, whether a defense

would succeed, and the difference between the sentence imposed 

by the plea and the maximum sentence allowed if the defendant 

was found guilty at trial. Grosvenor v. State, 874 So. 2d 1176, 

1181–82 (Fla. 2004).

Rule 3.850(f)(5) provides that if the summary denial is based 

on the records in the case, a copy of that portion of the files and 

records that shows that the defendant is entitled to no relief shall 

be attached to the final order. Here, the court records attached to 

the order do not conclusively refute the claims raised in either 

ground one or ground four.

As to ground one, the State’s response related that there was 

significant incriminating record evidence that readily established 

Davis’s guilt, making it unlikely that Davis would choose to go to 

trial. However, these records were not attached to the final order; 

and the transcript of the plea colloquy, which was attached to the 

order, does not otherwise conclusively refute Davis’s claim made 

in this first ground. 

Addressing ground four, there is no mention in the court 

records attached to the order that Davis’s twenty-five-year 

sentence was for a mandatory minimum term. As to the part of 

Davis’s claim in this ground regarding misadvice from counsel, an 

attorney has no duty to advise a client of gain time eligibility 

because it is a collateral consequence, and a defendant cannot 

withdraw his plea on that basis. Guerra v. State, 331 So. 3d 746, 

747 (Fla. 4th DCA 2022) (citing Smith v. State, 126 So. 3d 397, 400 

(Fla. 4th DCA 2013)); see also Hampton v. State, 217 So. 3d 1096, 

1099 (Fla. 5th DCA 2017) (“Gain time, good time, provisional credit 

time, and additional mitigating credits are all collateral 

consequences of a guilty plea.”). However, an attorney’s 

affirmative misadvice about such a collateral consequence may 

render a plea involuntary. Guerra, 331 So. 3d at 747.
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Here, Davis averred that his counsel misadvised him that he 

would be eligible for gain time regarding his twenty-five-year 

mandatory minimum sentence imposed under Florida’s 10-20-Life 

statute and that had he known that this was not the case, he would 

not have tendered his no contest plea. The records attached to the 

denial order do not conclusively refute this assertion.

Accordingly, we reverse the summary denial of grounds one 

and four and remand with directions that the postconviction court 

either attach additional court records to its order that conclusively 

show that Davis is entitled to no relief on these two grounds or hold 

an evidentiary hearing. To be clear, our reversal of these grounds 

should not be construed or interpreted by the postconviction court 

as indicating that we have determined, on the merits, that Davis 

is entitled to relief on either ground.

AFFIRMED, in part; REVERSED, in part; REMANDED, with 

directions.

WALLIS and SOUD, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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