MALCOLM HOSWELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Malcolm Hoswell appeals the summary denial of his post-conviction motion raising 28 claims. The appellate court finds one claim legally sufficient: that trial counsel failed to inform him of potential enhanced sentencing as a habitual offender, which may have affected his plea negotiations.
The court reversed and remanded for an evidentiary hearing on the ineffective assistance of counsel claim regarding counsel's failure to communicate the risk of enhanced sentencing. To succeed, Hoswell must prove that counsel failed to adequately communicate about the plea offer, that he would have accepted it if correctly advised, and that acceptance would have resulted in a lesser sentence.
[1] A claim of ineffective assistance of counsel based on failure to advise a defendant of potential enhanced sentencing before trial is legally sufficient if the defendant a…
[2] A defendant seeking relief for ineffective assistance of counsel must prove that counsel failed to communicate a plea offer, that the defendant would have accepted the of…
Previewing 2 of 4 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“counsel failed to [adequately] communicate a plea offer ..., that had he been correctly advised he would have accepted the plea offer, and that his acceptance of the state's plea offer would have resulted in a lesser sentence”
Establishes the three-part test for proving ineffective assistance of counsel regarding failure to communicate plea offers
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHoswell was charged with attempted second-degree murder. The state did not serve notice of intent to seek enhanced penalties as a habitual offender un…
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PER CURIAM.
Malcolm Hoswell appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion which the trial court consolidated and denied along with a rule 3.800(a) motion. In all, the motions raised twenty-eight claims in more than 181 pages of written text. We have carefully reviewed all of appellant’s claims and find that only one is legally sufficient and not conclusively refuted by the record.
Appellant claimed that counsel failed to inform him before trial that he could be subjected to enhanced sentencing as a habitual offender if convicted. The record reflects that the state did not serve a notice of intent to seek enhanced penalties until after the completion of the guilt phase of the jury trial but before sentencing. Appellant alleged in his sworn motion that he would have accepted a 55-month plea offer, which was made by the state before trial, if counsel had advised him correctly about the maximum penalty he faced. Appellant was ultimately sentenced as a habitual violent felony offender. In its response, the state below did not address this argument and did not attach record evidence to refute the claim.
Appellant’s claim was legally sufficient. See Cottle v. State, 733 So. 2d 963 (Fla.1999); Garcia v. State, 736 So. 2d 89 (Fla. 4th DCA 1999); Gonzales v. State, 691 So. 2d 602 (Fla. 4th DCA 1997). The claim was not conclusively refuted by record attachments and we, therefore, reverse and remand for an evidentiary hearing on this claim only. To establish an entitlement to relief, appellant is subject to a “strict standard of proof’ and must prove that “ ‘counsel failed to [adequately] communicate a plea offer ..., that had he been correctly advised he would have accepted the plea offer, and that his acceptance of the state’s plea offer would have resulted in a lesser sentence.’ ” Cottle, 733 So. 2d at 969 (quoting Young v. State, 608 So. 2d 111, 113 (Fla. 5th DCA 1992)).
As to appellant’s claims regarding the listing of aggravated battery on a law enforcement officer (LEO) as a lesser offense of attempted second degree murder, we affirm based on Sanders v. State, 944 So. 2d 203 (Fla.2006). The aggravated battery on a LEO was properly listed as a lesser-included offense, and the fact that this offense could result in the same penalty as the charged offense does not constitute fundamental error. Id. None of appellant’s sundry claims, which revolve around this issue, have any merit. Although a special verdict form was not used, the jury’s verdict reflects a clear finding that appellant committed every element of aggravated assault on a LEO permitting reclassification under section 784.07(2)(c), Florida Statutes. See State v. Iseley, 944 So. 2d 227 (Fla.2006).
SHAHOOD, GROSS and MAY, JJ„ concur.
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Cal Haynes v. State, 24 So. 3d 726 (Fla. 4th DCA 2009)…te, 807 So. 2d 817 (Fla. 4th DCA 2002). Haynes asserts that but for the misad-vice of counsel, he would have accepted the State’s plea offer of four years. If true, this is a viable claim for ineffective assistance of counsel. See Hoswell v. State, 948 So. 2d 820, 821 (Fla. 4th DCA 2007) (citing Cottle v. State, 733 So. 2d 963 (Fla.1999)). Haynes’s claim is not refuted by the record before this Court. Therefore, we reverse and remand the trial court’s summary denial of ground two for either an evidentiary h…
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Hoswell v. State, 45 So. 3d 71 (Fla. 4th DCA 2010)…. Appellant has again attempted to raise a meritless claim regarding his conviction for aggravated assault on a law enforcement officer (LEO) which has repeatedly been reviewed and rejected. The claim was rejected in the opinion in Hoswell v. State, 948 So. 2d 820 (Fla. 4th DCA 2007). Appellant’s argument is beyond the scope of our remand and this appeal. Appellant’s subsequent attempts at arguing variants of the same claim are an abuse of procedure. Appellant persists in arguing that the information was dup…
Authorities Cited
- Cottle v. State, 733 So. 2d 963 (Fla. 1999)
- Sanders v. State, 944 So. 2d 203 (Fla. 2006)
- Young v. State, 608 So. 2d 111 (Fla. 5th DCA 1992)
- Garcia v. State, 736 So. 2d 89 (Fla. 4th DCA 1999)
- State v. Iseley, 944 So. 2d 227 (Fla. 2006)
- Sycamore v. Fla. Atl. Univ., 691 So. 2d 602 (Fla. 4th DCA 1997)
- Gonzales v. State, 691 So. 2d 602 (Fla. 4th DCA 1997)