JOSE LUIS ROSA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Rosa appealed the summary denial of his postconviction motion claiming ineffective assistance of counsel. The court reversed as to his claim that trial counsel failed to communicate a favorable plea offer, finding the record did not conclusively refute this allegation and that an evidentiary hearing was warranted.
The court reversed the summary denial of the motion as to the plea offer claim because the record did not conclusively refute the allegation that counsel failed to communicate the offer. The court affirmed the denial as to the appellant's remaining ineffectiveness claims.
[1] A trial court's summary denial of a motion for postconviction relief is reversible when the record does not conclusively refute a claim of ineffective assistance of couns…
[2] Failure of defense counsel to communicate a plea bargain offer to a defendant may constitute ineffective assistance of counsel.
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Join FLexlaw to unlock all legal intelligence“the failure of defense counsel to communicate a plea bargain may constitute ineffective assistance of counsel”
Establishes the legal standard that uncommunicated plea offers can form the basis for ineffective assistance claims
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Join FLexlaw to unlock all legal intelligencePrior to trial, the state conveyed a plea offer to defense counsel. At trial, before the appellant was present, the prosecutor stated on the record th…
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PER CURIAM.
The appellant filed a motion for posteonviction relief which alleged several instances of ineffectiveness of trial counsel. The trial court summarily denied the motion. One of the appellant’s claims was that his attorney was ineffective for failing to advise him of a favorable plea offer made by the state prior to trial. The appellant asserts that he would have' accepted this offer had he been so advised. The record excerpt attached to the order of denial does not conclusively refute this claim. Therefore, as to this claim we reverse. We affirm as to the remaining claims.
Prior to the commencement of the appellant’s trial, the state had conveyed a plea offer to defense counsel. At trial, prior to the time when the appellant was present, the following exchange took place:
MR. GALO [prosecutor]: Just for the record, Your Honor, the State has extended me [sic] an offer in this matter and the defendant does reject it. I just want to make it on record that Mr. Lasley has éxtended that plea offer to the defendant and he has rejected the same; is that correct?
MR. LASLEY [defense counsel]: I am only going to answer questions from the Court....
The trial court did not ask defense counsel to answer the question. Therefore, the record is silent on the question of whether the plea offer was communicated to the appellant.
We recently noted in Gonzales v. State, 691 So. 2d 602 (Fla. 4th DCA), rev. denied, 700 So. 2d 685 (Fla.1997), that the failure of defense counsel to communicate a plea bargain may constitute ineffective assistance of counsel. See id. at 603 (citing Young v. State, 608 So. 2d 111 (Fla. 5th DCA 1992)). In Van Dyke v. State, 697 So. 2d 1015, 1015 (Fla. 4th DCA 1997), we reversed an order denying a rule 3.850 motion because appellant alleged that his defense counsel had failed to relate a plea offer. In the instant case, the appellant alleges that: he was not told of the plea offer; had he known about the plea, he would have accepted it; and his sentence would have been less than what he received after trial. Under Young and Gonzales, this is sufficient to warrant an evidentiary hearing on the issue.1
WARNER, KLEIN and GROSS, JJ., ! concur. . Just as the court in Young speculated on the available remedy for this ineffectiveness claim, see 608 So. 2d at 113 n. 4, we too are concerned about the available remedy. Compare Johnson v. State, 452 So. 2d 1035 (Fla. 4th DCA 1984), with In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713, 830 P. 2d 747 (1992). We asked the state to comment on these cases. However, the state responded that any discussion of a remedy was premature. If we were to follow Johnson, remand for a hearing may be unnecessary if no remedy is available. Nevertheless, based upon the state's response, we do not further evaluate this issue.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cottle v. State, 733 So. 2d 963 (Fla. 1999)…3) acceptance of the State’s plea offer would have resulted in a lesser sentence. See Young v. State, 608 So. 2d 111, 113 (Fla. 5th DCA 1992) (citing United States ex rel. Caruso v. Zelinsky, 689 F. 2d 435, 437 (3d Cir. 1982)); accord Rosa v. State, 712 So. 2d 414, 415 (Fla. 4th DCA 1998); Gonzales v. State, 691 So. 2d 602, 603 (Fla. 4th DCA 1997); Van Dyke v. State, 697 So. 2d 1015, 1015 (Fla. 4th DCA 1997); Seymore v. State, 693 So. 2d 647, 647 (Fla. 1st DCA 1997); Lee v. State, 677 So. 2d 312, 313 (Fla. 1s…
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Garcia v. State, 736 So. 2d 89 (Fla. 4th DCA 1999)…awyer either misadvised or did not tell him about a plea offer, which the defendant would have accepted instead of going to trial, whereupon he was convicted and sentenced to a term less favorable than the terms of the plea offer. See Rosa v. State, 712 So. 2d 414, 415 n. 1 (Fla. 4th DCA 1998). That issue is the proper remedy when a defendant proves this type of ineffective assistance of counsel. The recent opinion in Cottle v. State, 24 Fla. L. Weekly S166, S167, 733 So. 2d 963 (Fla.1999), cites two cases,…
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White v. State, 731 So. 2d 74 (Fla. 2d DCA 1999)…entence which was less severe than the one imposed after his trial. Florida courts uniformly have held that trial counsel’s failure to communicate a plea offer to the client can constitute ineffective assistance of counsel. See, e.g., Rosav. State, 712 So. 2d 414 (Fla. 4th DCA 1998); Karg v. State, 706 So. 2d 124 (Fla. 1st DCA 1998); Gonzales v. State, 691 So. 2d 602 (Fla. 4th DCA 1997); Young v. State, 608 So. 2d 111 (Fla. 5th DCA 1992). We have found no reported Florida decision addressing counsel’s failur…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Young v. State, 608 So. 2d 111 (Fla. 5th DCA 1992)
- Sycamore v. Fla. Atl. Univ., 691 So. 2d 602 (Fla. 4th DCA 1997)
- Gonzales v. State, 691 So. 2d 602 (Fla. 4th DCA 1997)
- Johnson v. State, 452 So. 2d 1035 (Fla. 4th DCA 1984)
- VAN Dyke v. State, 697 So. 2d 1015 (Fla. 4th DCA 1997)
- Basinski v. State, 697 So. 2d 1015 (Fla. 4th DCA 1997)