
    Ronald JOYNER, Appellant, v. STATE of Florida, Appellee.
    No. 89-3109.
    District Court of Appeal of Florida, Fourth District.
    July 17, 1991.
    Rehearing and Rehearing En Banc Denied Sept. 5, 1991.
    
      Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Robert A. Butterworth, Atty. Gen., Tallahassee, and Sylvia H. Alonso, Asst. Atty. Gen., West Palm Beach, for appellee.
   STONE, Judge.

Appellant entered a plea of guilty to aggravated battery with a firearm and was sentenced to five years in prison with a three year mandatory minimum. At that time the state dropped other pending charges. The court twice advised appellant that he would receive a five year sentence including a three year mandatory minimum provision. The appellant also acknowledged that no promises were made to him as an inducement for the plea. Subsequent to the sentencing the appellant filed a motion to withdraw his plea, alleging that his attorney misinformed him of the possibility of receiving statutory gain time credit on the mandatory minimum portion of the sentence. The court denied the motion. We affirm.

The trial court conducted an evidentiary hearing and accepted as evidence an affidavit by the defendant’s counsel confirming that he had told the defendant that he thought the defendant would receive gain time credit on the mandatory minimum portion of the sentence. The affidavit also described the various factors defendant and his counsel discussed and considered, including concern about defendant’s being sentenced as a habitual offender, which resulted in the initial determination that the plea was in the defendant’s best interest.

This court and others have recognized that a defendant should not be denied an opportunity to withdraw a plea induced by defense counsel’s misleading representations as to the consequences of the plea. See, e.g., Ramsey v. State, 408 So.2d 675 (Fla. 4th DCA 1981), rev. denied, 415 So.2d 1361 (Fla.1982); Tarpley v. State, 566 So.2d 914 (Fla. 2d DCA 1990); Weidmann v. State, 523 So.2d 737 (Fla. 2d DCA 1988); Shell v. State, 501 So.2d 1334 (Fla. 2d DCA 1987); Ray v. State, 480 So.2d 228 (Fla. 2d DCA 1985). We note that in each instance the appellate court was reviewing a summary disposition by the trial court.

In our judgment neither Ramsey nor the other cases appellant relied on deprive a trial court of the discretion to resolve issues of fact as to ineffectiveness of counsel, prejudice, voluntariness, and whether the plea was induced by any misinformation. As in any evidentiary decision, there are other factors the trial court considers as well, including the particular wording of counsel’s statements and the context in which they are made. In the final analysis, the trial court also considers the sufficiency of the evidence and credibility of the witnesses, including the credibility of counsel’s affidavits or testimony. Unfortunately, in this case we do not have the benefit of findings or explanation by the trial court of its reasons for resolving any of those issues against the appellant. However, none is required. We cannot conclude that one seeking relief on this allegation alone is entitled, per se, to prevail nor that the trial court lacks discretion to resolve these issues against a petitioner. We recognize that, here, the motion came only a matter of days after the sentence. However, in the absence of a per se reversal rule, such timing is simply an additional factor for the trial court to consider. Therefore, the order is affirmed. Cf. Qualls v. State, 315 So.2d 482 (Fla. 4th DCA 1975). See also Staggers v. State, 564 So.2d 1181 (Fla. 4th DCA 1990); Morgan v. State, 414 So.2d 593 (Fla. 3d DCA 1982).

HERSEY and STONE, JJ., concur.

GLICKSTEIN, C.J., dissents with opinion.

GLICKSTEIN, Chief Judge,

dissenting.

I would reverse and remand with direction to allow the defendant to withdraw his plea. Staggers v. State, 564 So.2d 1181 (Fla. 4th DCA 1990), represents the law of this district as to defendants who have not informed the trial court of their claim of being misled or appealed their convictions or sentences, but then have sought relief under Florida Rule of Appellate Procedure 3.850. This court, in a split decision, affirmed the trial court’s denial of an eviden-tiary hearing on the defendant’s claim.

The majority now extends the Staggers majority rule to a defendant who allegedly entered a plea on a Friday morning based on misinformation given him by his lawyer as to the amount of time he would actually serve. On the same afternoon the defendant told his lawyer of the latter’s error. On the following Tuesday the defendant and his lawyer came before the trial court, which held a non-evidentiary hearing on the basis of the defendant’s handwritten note which said his lawyer was wrong. Much of what occurred at that hearing is disjointed and difficult for me to understand fully from the transcript.

On Wednesday, the defendant’s lawyer filed an affidavit with the trial court, saying:

4. On Friday, November 17, 1989, in the jury room of courtroom 440, I discussed with Mr. Joyner and his mother whether or not he should take the plea offered.
[5.]e. I advised Mr. Joyner that given his time served (approximately 6 months) and what I thought his gain-time would be on the three year mandatory minimum, I expected that he would serve not much more than an additional year in jail.
6. In the afternoon of Friday, November 20, 1989, Mr. Joyner called to inform me that, I was incorrect, he would not get the gain-time and advised and [sic] he wanted to withdraw his plea.
7. Simply stated, Mr. Joyner believes he will now have to serve three years in jail instead of serving an additional one year.
8. If Mr. Joyner is correct then I, unintentionally and unknowingly, gave Mr. Joyner incorrect information.
9. It was clear from our conversation that if Mr. Joyner been aware of the fact that he was going to have to do three years additional time in jail he would not have taken the plea.
17. On November 22, 1989, I contacted the Admissions and Release section of the Department of Corrections in Tallahassee who informed me that there is no gain-time given on mandatory minimum firearm charges. (He will serve the mandatory minimum day for day less credit for time served). Therefore, Mr. Joyner would serve approximately an additional 2V2 years versus the 1 year which I anticipated and represented to him.

In my view, this panel is not bound by the majority opinion in Staggers as the cases are factually different, and the reasons given for that opinion should not apply here. I cannot ascribe a valid reason for the trial court’s decision in this case, given the misunderstanding about a defendant’s most important concern — how much time must be served. As someone has observed, time is not important unless you are serving it.  