MARK A. SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Smith appealed denial of his post-conviction motion claiming ineffective assistance of counsel for failing to properly advise him about a plea offer. The court affirmed, holding that Smith failed to demonstrate the requisite prejudice under Strickland because counsel's alleged failure to fully explore a lesser-included offense did not fall below an objective standard of reasonableness.
The court held that Smith failed to establish ineffective assistance of counsel because merely alleging that counsel told him to reject the plea, without demonstrating that such advice fell below an objective standard of reasonableness, is insufficient to show the prejudice required by Strickland v. Washington. The alleged failure to fully advise regarding a lesser offense does not demonstrate prejudice even if true.
[1] Failure to properly convey a plea offer can constitute ineffective assistance of counsel.
[2] A prima facie case of ineffective assistance of counsel based on the rejection of a plea offer requires allegations and proof that counsel failed to communicate the offer…
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Join FLexlaw to unlock all legal intelligence“A prima facie case of ineffective assistance of counsel based on the rejection of a plea offer requires allegations and proof (1) that counsel failed to communicate a plea offer or misinformed the defendant concerning the penalties; (2) that the defendant would have accepted the plea offer but for the inadequate communication; and (3) that acceptance of the plea offer would have resulted in a lesser sentence.”
Establishes the three-prong test for ineffective assistance claims involving rejected plea offers, citing Cottle v. State
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Join FLexlaw to unlock all legal intelligenceSmith was convicted of armed burglary of a structure and sentenced to thirty years as a habitual offender. Smith rejected a plea offer of seven years …
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STONE, J.
We affirm an order that summarily denied Smith’s rule 3.850 motion for post-conviction relief.
Smith was convicted of armed burglary of a structure. The trial court sentenced him to thirty years as a habitual offender. Smith alleges that he rejected a plea offer of seven years as a habitual offender. He claims that counsel failed to advise him that based on the evidence, including Smith’s statement to the authorities, there was no defense to the lesser-included offense of armed trespass for which he could have been sentenced to ten years as a habitual offender. Smith claims that had he been so advised, he would have accepted the state’s seven year offer tq the offense of armed burglary, the charged offense, because he did not deny being on the burglarized premises. We recognize that failure to properly convey a plea offer can constitute ineffective assistance of counsel. See Cottle v. State, 733 So. 2d 963 (Fla.1999). A prima facie case of ineffective assistance of counsel based on the rejection of a plea offer requires allegations and proof (1) that counsel failed to communicate a plea offer or misinformed the defendant concerning the penalties; (2) that the defendant would have accepted the plea offer but for the inadequate communication; and (3) that acceptance of the plea offer would have resulted in a lesser sentence. Cottle. Cottle recognized that the prejudice to the defendant, required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is inherent in the defendant’s inability to make an informed decision concerning whether to accept the plea offer. Id.
We note that it is not Smith’s position that counsel failed to relay the offer, but rather that counsel failed to fully explore the plea in connection with the lack of defense to the lesser-included offense.
In Szymanowski v. State, 771 So. 2d 10 (Fla. 4th DCA 2000), this court recognized that misinformation by counsel affecting a defendant’s decision to accept a plea may constitute ineffective assistance of counsel under certain circumstances. However, we conclude that merely alleging that counsel told him to reject the plea, without more, does not demonstrate that counsel fell below the “objective” standard of reasonableness under Strickland. See also Gonzales v. State, 691 So. 2d 602 (Fla. 4th DCA)(rejecting a plea and proceeding to trial is a tactical or strategic decision, which cannot be the basis of an ineffective assistance of counsel claim), rev. denied, 700 So. 2d 685 (Fla.1997).
We have considered Owens v. State, 792 So. 2d 650 (Fla. 4th DCA 2001); Steel v. State, 684 So. 2d 290 (Fla. 4th DCA 1996), and deem them inapposite. Each involves misinformation about the evidence, or lack of evidence, against the defendant as to the charge for which he was convicted.
In Cottle, the petitioner claimed facts which, if true, evidence prejudice. Here, however, even if true, the alleged failure to fully advise as to the lesser crime is insufficient to demonstrate prejudice under Strickland.
Therefore, the order is affirmed.
GROSS and MAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Morgan v. State, 991 So. 2d 835 (Fla. 2008)…ineffective assistance of counsel claim. Accordingly, even if appellant could prove his allegation, it would not entitle him to relief. Gonzales, 691 So. 2d at 604. After Gonzales, in Morgan, the case that is now before this Court, Smith v. State, 825 So. 2d 1012 (Fla. 4th DCA 2002), and Szymanowski v. State, 771 So. 2d 10 (Fla. 4th DCA 2000), the court cited with approval its earlier Gonzales opinion. Specifically, in Smith and Szymanowski, the court cited Gonzales for the proposition that a claim involving…
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Rollie Gilliam v. State, 857 So. 2d 1006 (Fla. 4th DCA 2003)…ndings of Guilt filed in the underlying case did not support Gilliam’s claim that a plea offer had been made. We reject the State’s arguments. Failure to properly convey a plea offer can constitute ineffective assistance of counsel. Smith v. State, 825 So. 2d 1012 (Fla. 4th DCA 2002), rev. denied, 842 So. 2d 846 (Fla.2003). When the alleged ineffectiveness concerns the rejection of a plea offer, the defendant must prove: (1) counsel failed to communicate a plea offer or misinformed defendant concerning the pe…
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Williams v. State, 837 So. 2d 1084 (Fla. 4th DCA 2003)…t, and that acceptance of the plea offer would have resulted in a sentence less than the one he received. Appellant states a prima facie case for ineffective assistance of counsel under Cottle v. State, 733 So. 2d 963 (Fla.1999). See Smith v. State, 825 So. 2d 1012 (Fla. 4th DCA 2002). We affirm in part, reverse in part, and remand for attachment of portions of the record conclusively establishing that appellant is not entitled to relief or for an evidentiary hearing concerning the above referenced claim.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Cottle v. State, 733 So. 2d 963 (Fla. 1999)
- Steel v. State, 684 So. 2d 290 (Fla. 4th DCA 1996)
- Sycamore v. Fla. Atl. Univ., 691 So. 2d 602 (Fla. 4th DCA 1997)
- Gonzales v. State, 691 So. 2d 602 (Fla. 4th DCA 1997)
- Szymanowski v. State, 771 So. 2d 10 (Fla. 4th DCA 2000)
- Ramirez v. State, 792 So. 2d 650 (Fla. 3d DCA 2001)