DAMION WHITTEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Damion Whitten appealed the denial of his Rule 3.850 postconviction motion claiming ineffective assistance of counsel. The court affirmed the denial of two grounds but reversed and remanded on two grounds: failure to communicate a plea offer and improper habitualization proceedings.
The court held that Whitten stated a prima facie case of ineffective assistance on the failed plea offer ground because he alleged counsel failed to communicate the offer, he would have accepted it, and it would have resulted in a lesser sentence than the life sentence he received. The court also held that the circuit court erred in summarily denying the habitualization ground without attaching the required evidentiary documents.
[1] Failure to convey a plea offer can constitute ineffective assistance of counsel.
[2] To establish ineffective assistance of counsel for failure to convey a plea offer, a defendant must allege that counsel failed to communicate the offer, that the defendan…
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Join FLexlaw to unlock all legal intelligence“In order to state a prima facie case of ineffective assistance of counsel based on failing to convey a plea offer, the defendant must allege: (1) that counsel failed to communicate a plea offer; (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-part test for ineffective assistance claims based on failure to communicate plea offers
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Join FLexlaw to unlock all legal intelligenceWhitten was convicted and received a life sentence. He claimed his trial counsel failed to communicate a plea offer of thirty years until just before …
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NORTHCUTT, Judge.
Damion Whitten challenges the circuit court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Whitten raised four possible grounds for relief based on ineffective assistance of counsel.
We affirm the denial as to grounds two and three without discussion.
We reverse and remand for further proceedings on grounds one and four. In ground one, Whitten alleged that his trial counsel failed to convey a plea offer. This can constitute ineffective assistance of counsel. See Cottle v. State, 733 So. 2d 963 (Fla.1999); Eristma v. State, 766 So. 2d 1095 (Fla. 2d DCA 2000); Shingleton v. State, 759 So. 2d 713 (Fla. 2d DCA 2000); White v. State, 731 So. 2d 74 (Fla. 2d DCA 1999).
In order to state a prima facie case of ineffective assistance of counsel based on failing to convey a plea offer, the defendant must allege: (1) that counsel failed to communicate a plea offer; (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. See Cottle, 733 So. 2d at 967; Eristma, 766 So. 2d at 1096; Lewis v. State, 751 So. 2d 715, 717 (Fla. 5th DCA 2000); Garcia v. State, 736 So. 2d 89, 89-90 (Fla. 4th DCA 1999).
In his motion, Whitten alleged that he did not become aware of a plea offer of thirty years until just before the jury was sworn, when his attorney mentioned it to the trial court. Whitten alleged that he would have accepted the plea offer if he had known about it. Thirty years in prison is a lesser sentence than the life sentence Whitten subsequently received. Whitten therefore stated a prima facie case under Cottle. When denying this claim the circuit court relied on the trial transcript passage in which Whitten’s counsel advised the trial court that the offer had been made.
However, this exchange did not refute Whitten’s assertion that this was the first he had heard of the offer.
Therefore, he is entitled to an evidentiary hearing on this ground.
We reverse the order summarily denying relief on ground one of Whitten’s motion and remand for an evidentiary hearing on that ground. Should Whitten be successful at the hearing, we would suggest, as the Fifth District did in Lewis, a “good faith resumption of plea negotiations.” Lewis, 751 So. 2d at 718.
In ground four, Whitten complained that he was improperly habitual-ized in violation of the sequential conviction requirement. The circuit court’s order states that the habitualization packet in the record refutes this ground. However, the court failed to attach this packet to its order. We therefore also reverse the order summarily denying relief on ground four of Whitten’s motion and remand for the court to attach the required documents.
Affirmed in part, reversed in part, and remanded for further proceedings.
SALCINES and STRINGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Gallant v. State, 898 So. 2d 1156 (Fla. 2d DCA 2005)…ould not have been discovered by due diligence by his collateral counsel and raised in the original rule 3.850 motion. We disagree. A trial counsel’s failure to convey a plea offer can constitute ineffective assistance of counsel. Whitten v. State, 841 So. 2d 578, 579 (Fla. 2d DCA 2003) (citing Cottle v. State, 733 So. 2d 963 (Fla.1999)). In order to state a prima facie ease of ineffective assistance of counsel based on failing to convey a plea offer, the defendant must allege (1) that counsel failed to comm…
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Forbes v. State, 269 So. 3d 677 (Fla. 2d DCA 2019)…t unnecessarily concluded that the State made a plea offer. "A trial counsel's failure to convey a plea offer can constitute ineffective assistance of counsel." Gallant v. State, 898 So. 2d 1156, 1157 (Fla. 2d DCA 2005) (citing Whitten v. State, 841 So. 2d 578, 579 (Fla. 2d DCA 2003)); see also Taylor v. - 5 - State, 248 So. 3d 280, 281 (Fla. 5th DCA 2018) ("The failure to convey a favorable plea offer to a defendant in a criminal case can constitute ineffective assistance of counsel." (citing Clark,…
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Mitchell v. State, 197 So. 3d 1271 (Fla. 2d DCA 2016)…the allegation that Mitchell would have accepted the first plea offer before the information was amended. Because Mitchell’s motion was legally sufficient and was not refuted by the record, an evidentiary hearing was required. See Whitten v. State, 841 So. 2d 578, 579 (Fla. 2d DCA 2003) (holding that the defendant was entitled to an evidentiary hearing on his postconviction claim that counsel was ineffective for failing to convey a plea offer where the record did not refute the defendant’s claims). According…
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
- Cottle v. State, 733 So. 2d 963 (Fla. 1999)
- Lewis v. State, 751 So. 2d 715 (Fla. 5th DCA 2000)
- Garcia v. State, 736 So. 2d 89 (Fla. 4th DCA 1999)
- Dieu-Vieu Eristma v. State, 766 So. 2d 1095 (Fla. 2d DCA 2000)
- White v. State, 731 So. 2d 74 (Fla. 2d DCA 1999)
- Shingleton v. State, 759 So. 2d 713 (Fla. 2d DCA 2000)