THE STATE OF FLORIDA, APPELLANT,
v.
JOSEPH FRANKLIN MOSES, APPELLEE
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Florida appeals from an order granting a Rule 3.850 motion for ineffective assistance of counsel based on the public defender's alleged misadvice regarding sentencing that prevented the defendant from accepting a plea bargain. The court reverses, holding that the defendant's post-conviction self-serving statements are insufficient to prove prejudice without independent corroborating evidence.
The court holds that the evidence is legally insufficient to support the relief granted. A defendant's self-serving post-conviction statement that he would have accepted a plea bargain with competent advice is insufficient to sustain the burden of proof as to prejudice and must be corroborated by independent objective evidence.
[1] A defendant seeking to prove ineffective assistance of counsel based on misadvice regarding a plea offer must demonstrate that, with effective assistance, they would have…
[2] Factors in determining whether a defendant would have accepted a plea offer include counsel's communication of the offer, counsel's advice, the disparity between the offe…
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Join FLexlaw to unlock all legal intelligence“In determining whether a defendant, with effective assistance, would have accepted the offer, pertinent factors to be considered include: whether counsel actually and accurately communicated the offer to the defendant; the advice, if any, given by counsel; the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer; and whether the defendant indicated he or she was amenable to negotiating a plea bargain.”
Establishes the Alvernaz test adopted by the court for evaluating ineffective assistance claims related to rejected plea bargains.
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Join FLexlaw to unlock all legal intelligenceJoseph Franklin Moses was represented by a public defender at trial. The defendant's public defender allegedly misadvised him regarding his potential …
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SCHWARTZ, Chief Judge.
The state appeals from an order granting a 3.850 motion and ordering a new trial on the ground that the defendant’s public defender had rendered him ineffective assistance at trial by misadvising him as to his potential sentence, thereby resulting in his failure to accept a proposed plea bargain of time served. We hold that the evidence is legally insufficient to support the relief granted under the test stated in In re Alvernaz, 2 Cal.4th 924, 938, 8 Cal.Rptr.2d 713, 722, 830 P. 2d 747, 756 (1992)(en banc), which we adopt here:
In determining whether a defendant, with effective assistance, would have accepted the offer, pertinent factors to be considered include: whether counsel actually and accurately communicated the offer to the defendant; the advice, if any, given by counsel; the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer; and whether the defendant indicated he or she was amenable to negotiating a plea bargain. In this context, a defendant’s selfserving statement — after trial, conviction, and sentenee-that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to prejudice, and must be corroborated independently by objective evidence. A contrary holding would lead to an unchecked flow of easily fabricated claims.
See also Diaz v. United States, 930 F. 2d 832 (11th Cir.1991); Toro v. Fairman, 940 F. 2d 1065 (7th Cir.1991), cert. denied, 505 U.S. 1223, 112 S.Ct. 3038, 120 L.Ed.2d 907 (1992); cf. Turner v. Tennessee, 858 F. 2d 1201 (6th Cir.1988), vacated, 492 U.S. 902, 109 S.Ct. 3208, 106 L.Ed.2d 559 (1989), remanded, 883 F. 2d 38 (6th Cir.1989), on remand, 726 F.Supp. 1113 (M.D.Tenn.1989), affd, 940 F. 2d 1000 (6th Cir.1991), cert. denied, 502 U.S. 1050, 112 S.Ct. 915, 116 L.Ed.2d 815 (1992). See generally Drackett Prods: Co. v. Blue, 152 So. 2d 463 (Fla.1963).
Accordingly, the order below is reversed with directions to deny the 3.850 motion and reinstate the judgment and sentence.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Rodriguez, 990 So. 2d 600 (Fla. 3d DCA 2008)…arity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer; and whether the defendant indicated he or she was amenable to negotiating a plea bargain. State v. Moses, 682 So. 2d 595, 596 (Fla. 3d DCA 1996) quoting In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713, 830 P. 2d 747, 756 (1992). In this case, there is no dispute that the State’s plea offer was relayed to the defendant. The principle issue, therefore, is whether or n…
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State v. Schiano, 696 So. 2d 531 (Fla. 4th DCA 1997)…ring, if required, or “make appropriate disposition of the motion.” Id. At least some of the issues raised by Schi-ano’s motion typically require an evidentiary [*532] hearing. See Sanchez v. State, 683 So. 2d 606 (Fla. 3d DCA 1996); State v. Moses, 682 So. 2d 595, 596 (Fla. 3d DCA 1996), review denied, 689 So. 2d 1070 (Fla.1997). On remand, Schiano should be given leave to amend his motion to correct the pleading deficiencies raised by the state. See Panno v. State, 517 So. 2d 129, 131 (Fla. 4th DCA 1987),…
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Williams v. State, 924 So. 2d 897 (Fla. 1st DCA 2006)…my view, such testimony alone, without any objective testimony demonstrating that Appellant desired to accept a plea offer, cannot establish a “reasonable probability” that Appellant was prejudiced by the alleged ineffectiveness. See State v. Moses, 682 So. 2d 595 (Fla. 3d DCA 1996) (holding that defendant’s self-serving assertion after trial, conviction, and sentence, that with competent advice from counsel he would have accepted plea offer is insufficient. to meet burden of demonstrating prejudice); Johnson…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Diaz v. United States, 930 F.2d 832 (11th Cir. 1991)
- The Drackett Prods. Co. v. Blue, 152 So. 2d 463 (Fla. 1963)
- Turner v. State OF Tenn., 858 F.2d 1201 (6th Cir. 1988)
- Commissioner of Internal Revenue v. Merit Life Ins. Co., 492 U.S. 902 (U.S. 1989)
- Brown-Forman Corp. v. Tenn. Alcoholic Bev. Comm'n, 492 U.S. 902 (U.S. 1989)
- Toro v. Warden J.W. Fairman & Attorney Gen. of the State of Ill., 940 F.2d 1065 (7th Cir. 1991)
- Tennessee v. Turner, 502 U.S. 1050 (U.S. 1992)
- Turner v. State OF Tenn., 940 F.2d 1000 (6th Cir. 1991)
- Edgmon v. United States, 505 U.S. 1223 (U.S. 1992)
- Toro v. Fairman, 505 U.S. 1223 (U.S. 1992)