RON B. SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a claim of ineffective assistance of counsel based on failure to advise about enhanced sentencing consequences of rejecting a plea offer is facially sufficient if it alleges the elements required by Cottle v. State. The court affirmed the denial of one claim but reversed the denial of another.
[1] A claim that a sentence was vindictive is cognizable on direct appeal and cannot be raised in a postconviction motion if it could have been raised on direct appeal.
[2] A postconviction claim of ineffective assistance of counsel for failing to advise a defendant of a plea offer is facially sufficient if it alleges counsel failed to commu…
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Join FLexlaw to unlock all legal intelligenceAppellant appealed the summary denial of his postconviction motion. His first claim alleged vindictive sentencing, which was denied as it could have b…
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[*973] CANADY, Judge.
Ron B. Smith appeals the summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. As to Smith’s first claim that his sentence was vindictive, we affirm the postconviction court’s denial order because this claim could have been raised on direct appeal. See McDonald v. State, 751 So. 2d 56, 58 (Fla. 2d DCA 1999). Because the postconviction court incorrectly determined that Smith’s second claim was facially insufficient, we reverse and remand for further proceedings.
Smith’s second claim is that trial counsel was ineffective for failing to advise him that he faced an enhanced habitual felony offender and prison releasee reof-fender sentence if he rejected the trial court’s initial 15.6-year plea offer. Smith alleges that he would have accepted the trial court’s 15.6-year initial offer if counsel had adequately advised him of the penalty he faced. Finally, Smith alleges that the trial court’s 15.6-year plea offer would have resulted in a lesser sentence than the enhanced thirty-year prison sentence he received.
Smith’s second claim is facially sufficient. A facially sufficient claim that counsel failed to inform a defendant of a plea offer requires the following showing: “ ‘(1) counsel failed to communicate a plea offer or misinformed defendant concerning the penalty faced, (2) defendant would have accepted the plea offer but for the inadequate notice, and (3) acceptance of the State’s plea offer would have resulted in a lesser sentence.’ ” Murphy v. State, 869 So. 2d 1228, 1229 (Fla. 2d DCA 2004) (quoting Cottle v. State, 733 So. 2d 963, 967 (Fla.1999)). Smith’s claim contains each of those elements. Accordingly, the postcon-viction court erred in determining that the claims were facially insufficient.
On remand, if the postconviction court should again deny Smith relief on his second claim, then it should attach those records that conclusively refute his claim. Otherwise, the postconviction court should hold an evidentiary hearing.
Affirmed in part, reversed in part, and remanded.
DAVIS and KELLY, JJ, Concur.
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Plancarte v. State, 975 So. 2d 487 (Fla. 2d DCA 2007)…s subject to sentencing under the 10/20/Life statute. Planearte alleged that but for counsel’s deficiency, he would have accepted a five-year plea offer from the State rather than go to trial. This is a facially sufficient claim. See Smith v. State, 909 So. 2d 972 (Fla. 2d DCA 2005); Garcia v. State, 736 So. 2d 89 (Fla. 4th DCA 1999); see also Cottle v. State, 733 So. 2d 963 (Fla.1999). And the postconviction court has failed to provide a record basis conclusively showing that Planearte is entitled to no reli…
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Ellvin Hunter v. State, 18 So. 3d 705 (Fla. 4th DCA 2009)…fact of defense counsel’s acknowledgment does not prove that defense counsel properly informed Hunter of his exposure when he advised him of the State’s plea offer. Thus, this allegation is not refuted by the record. Furthermore, in Smith v. State, 909 So. 2d 972 (Fla. 2d DCA 2005), the court held that a defendant was entitled to an evidentiary hearing on his motion for post-conviction relief where he alleged defense counsel had failed to inform him that he faced habitual felony offender sentencing of thirty…
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Davis v. State (Fla. 2d DCA 2022)…) from the Circuit Court for Hillsborough County; Michelle Sisco, Judge. Theodore Davis, Jr., pro se. PER CURIAM. Affirmed. See McDonald v. State, 133 So. 3d 530 (Fla. 2d DCA 2013); Hughes v. State, 22 So. 3d 132 (Fla. 2d DCA 2009); Smith v. State, 909 So. 2d 972 (Fla. 2d DCA 2005); Boyd v. State, 880 So. 2d 726 (Fla. 2d DCA 2004); Brown v. State, 827 So. 2d 1054 (Fla. 2d DCA 2002). VILLANTI, KHOUZAM, and STARGEL, JJ., Concur. Opinion subject to revision prior to official publication.…
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)
- Cordell T. Allen v. State, 751 So. 2d 56 (Fla. 5th DCA 1999)
- McDONALD v. State, 751 So. 2d 56 (Fla. 2d DCA 1999)
- Murphy v. State, 869 So. 2d 1228 (Fla. 2d DCA 2004)