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22 Fla. L. Weekly D2210g

ALPHONSO SWAIN, Appellant, v. STATE OF FLORIDA, Appellee. 1st District. Criminal law -- Post conviction relief -- Plea -- Voluntariness -- Remand for evidentiary hearing or attachment of portions of record which conclusively show that defendant is entitled to no relief on his claim that his plea was involuntary

ALPHONSO SWAIN, Appellant, v. STATE OF FLORIDA, Appellee. 1st District. Case No. 96-2334. Opinion filed September 18, 1997. An appeal from the Circuit Court for Duval County. William A. Wilkes, Judge. Counsel: Appellant, pro se. Robert A. Butterworth, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.

(PER CURIAM.) Alphonso Swain (Swain) appeals the denial of his rule 3.850 motion for postconviction relief. We affirm the denial of all of Swain's claims of ineffective assistance of counsel, except for one issue in which he claims that his plea was involuntary.

Swain argues that his plea was rendered involuntary in that he was misled as to the maximum penalty which might be imposed for the offenses with which he was charged. Specifically, Swain asserts that he was told that he would face a life sentence if he went to trial, when in fact a life sentence was not a possibility for the charges Swain faced. He further alleges that had he known that he was not facing a life sentence, he would have insisted on going to trial instead of pleading guilty.

Because the portions of the record attached to the order denying the motion do not conclusively refute Swain's allegations on this one issue, we reverse and remand for attachment of portions of the record which do conclusively show that he is entitled to no relief, or, alternatively, for an evidentiary hearing. Gilyard v. State, 675 So. 2d 950 (Fla. 1st DCA 1996). We affirm the trial judge's order in all other respects.

Affirmed in part, reversed in part, and remanded for consistent proceedings. (MINER, MICKLE and LAWRENCE, JJ., CONCUR.)

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