THE STATE OF FLORIDA, APPELLANT,
v.
JOSEPH FRANKLIN MOSES, APPELLEE
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A defendant's self-serving statement after conviction that he would have accepted a plea bargain with effective assistance is insufficient to prove prejudice from ineffective assistance of counsel and must be independently corroborated by objective evidence.
[1] In evaluating whether a defendant would have accepted a plea bargain with effective assistance of counsel, a defendant's post-conviction assertion that he would have acce…
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Join FLexlaw to unlock all legal intelligence“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.”
The court's statement of the legal standard for evaluating ineffective assistance claims based on rejected plea bargains.
The defendant's public defender allegedly misadvised him regarding his potential sentence, causing him to reject a proposed plea bargain of time serve…
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On consideration of the appellee’s motion for rehearing, the opinion of this court dated February 28, 1996, State v. Moses (Fla.3d DCA Case Nos. 94-2952 & 94-2938, opinion filed, February 28, 1996) [21 FLW D525], is withdrawn and the attached corrected opinion is substituted in its place. The corrected opinion deletes footnote one of the February 28, 1996 opinion because the court has concluded it was not justified by the record on appeal and corrects the citation to Turner v. Tennessee at page 596 of the opinion. The motion for rehearing is considered as directed to the corrected opinion and is otherwise denied.
SCHWARTZ, C.J., and NESBITT and JORGENSON, JJ., concur.
Appellee’s motion for rehearing en banc is denied.
CORRECTED OPINION
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.
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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)