EDWARD KASPER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kasper appeals the denial of his Rule 3.850 motion claiming ineffective assistance of counsel based on his attorney's misadvice regarding the felony degree and sentence exposure for aggravated stalking. The court reverses and remands, finding the claim facially sufficient under the Strickland standard because counsel's performance was deficient and prejudice is demonstrated.
The court held that Kasper's claim satisfies both prongs of the Strickland test: counsel's performance was deficient due to affirmative misadvice about the sentence length, and prejudice is shown by his allegation that he would not have pled but for the misadvice. The claim is not refuted by the record and must proceed to an evidentiary hearing.
[1] A claim of ineffective assistance of counsel requires a showing of deficient performance and resulting prejudice.
[2] Affirmative misadvice from counsel regarding the classification and potential sentence for a criminal offense constitutes deficient performance.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“To show ineffective assistance, an appellant must show that 1) counsel's performance fell below an objective standard of reasonableness (deficient performance), and 2) but for counsel's errors, the results of the proceedings would have been different (prejudice).”
States the controlling legal standard from Strickland v. Washington for evaluating ineffective assistance claims.
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Join FLexlaw to unlock all legal intelligenceKasper pled nolo contendere to aggravated stalking under section 784.048(4), Florida Statutes, in exchange for 31.5 months incarceration. His counsel …
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PER CURIAM.
This is a timely appeal of the denial of a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The appellant pled nolo contendere to aggravated stalking under section 784.048(4), Florida Statutes (1999), in exchange for a sentence of 31.5 months of incarceration. He subsequently alleged in his rule 3.850 motion that he would not have pled but for his counsel’s misadvice that the offense was a second-degree felony punishable by up to fifteen years, rather than a third-degree felony punishable by up to five years. The trial court denied the appellant’s motion. We reverse.
The appellant’s claim is facially sufficient. To show ineffective assistance, an appellant must show that 1) counsel’s performance fell below an objective standard of reasonableness (deficient performance), and 2) but for counsel’s errors, the results of the proceedings would have been different (prejudice). See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The appellant’s allegations fulfill both prongs.
First, he demonstrated that his counsel’s performance was deficient by alleging that counsel told him the offense was a second-degree felony even though aggravated stalking under section 784.048(4) is a third-degree felony, and his maximum exposure was thus five years, rather than 15 years. See § 775.082(3)(c) and (d), Fla. Stat. (1999). See, e.g., Ash v. State, 767 So. 2d 1260 (Fla. 1st DCA 2000) (holding that affirmative misadvice as to the length of an appellant’s sentence is deficient performance).
Second, he showed that he was prejudiced by alleging that he would not have pled, but would have gone to trial, if not for the ineffectiveness of his counsel. See Mason v. State, 742 So. 2d 370 (Fla. 1st DCA 1999). '
The appellant’s claim is not refuted by the record on appeal because there is no indication that the misadvice was corrected by court documents or the trial court. Cf. McKay v. State, 715 So. 2d 1001, 1002 (Fla. 1st DCA 1998) (holding that the record conclusively refutes a claim of ineffective assistance of counsel where both the trial court and appellant’s counsel noted at the plea colloquy that the sentence included a mandatory term, and the appellant asserted that he had only been promised the agreement). The appellant’s scoresheet, plea, and sentencing documents all erroneously reflect that the crime is a second-degree felony.
Accordingly, we reverse and remand to the trial court for an evidentiary hearing or for attachments from the record which conclusively refute the appellant’s claim that his counsel misadvised him as to the length of his sentence.
REVERSED and REMANDED.
ERVIN and BROWNING, JJ., concur; KAHN concurs with opinion.
KAHN, J.,
concurring.
I concur in the result, subject to the observations I made in my concurring opinion in Mason v. State, 742 So. 2d 370, 372 (Fla. 1st DCA 1999).
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Broderick Mongo v. State, 846 So. 2d 613 (Fla. 1st DCA 2003)…as stating that the prejudice prong “is satisfied by an allegation ‘that there is a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial’ ”); Kasper v. State, 828 So. 2d 1047, 1048 (Fla. 1st DCA 2002) (concluding that defendant, who had entered plea based on misadvice regarding the statutory maximum sentence, established prejudice by alleging he would have gone to trial but for the ineffectiveness of counsel). The major…
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Smith v. State, 146 So. 3d 536 (Fla. 1st DCA 2014)…tive assistance of counsel where he alleges that his attorney misad-vised him as to his maximum possible sentencing exposure and that, but for this misadvice, he would not have pled guilty, but would have insisted on going to trial. Kasper v. State, 828 So. 2d 1047, 1047-48 (Fla. 1st DCA 2002). A trial court may not summarily deny such a claim unless it is refuted by the record. Id. at 1048. In the instant case, the appellant set out a facially sufficient claim. He alleged that his attorney erroneously advise…
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Taylor v. State, 853 So. 2d 1115 (Fla. 1st DCA 2003)…lant’s claim is facially sufficient, we reverse the summary denial and remand for the trial court to either attach record portions conclusively refuting his entitlement to relief or else hold an evidentiary hearing on the claim. See Kasper v. State, 828 So. 2d 1047, 1047 (Fla. 1st DCA 2002). REVERSED and REMANDED. WOLF, C.J., LEWIS and POLSTON, JJ., Concur.…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Mason v. State, 742 So. 2d 370 (Fla. 1st DCA 1999)
- McKAY v. State, 715 So. 2d 1001 (Fla. 1st DCA 1998)
- Cullins v. State, 767 So. 2d 1260 (Fla. 1st DCA 2000)
- ASH v. State, 767 So. 2d 1260 (Fla. 1st DCA 2000)