JOHNNY L. BIRCH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed summary denial of ineffective assistance of counsel claim where defendant alleged counsel failed to communicate his acceptance of a favorable plea offer to the State, resulting in a worse plea deal.
A defendant states a prima facie claim of ineffective assistance of counsel when he alleges his counsel failed to communicate his acceptance of a plea offer to the prosecution, and such allegations entitle him to an evidentiary hearing unless conclusively refuted by the record.
[1] Allegations that counsel failed to communicate a defendant's acceptance of a favorable plea offer to the prosecution state a prima facie claim of ineffective assistance o…
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Join FLexlaw to unlock all legal intelligenceAppellant alleged the State offered him an 18-month prison sentence for unlawful sale and delivery of cocaine, he accepted the offer and communicated …
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PER CURIAM.
Appellant challenges the summary denial of his rule 3.850 motion for post-conviction relief based upon alleged ineffective assistance of counsel. We reverse because the record does not conclusively refute Appellant’s allegations.
Appellant alleges that the State offered to allow him to plead guilty to unlawful sale and delivery of cocaine in exchange for an agreed sentence of 18 months in prison. Appellant further alleges that he accepted this offer, communicated his acceptance of the offer to his trial counsel, but that his counsel did not inform the State that he had accepted the offer. As a result, Appellant contends that the State withdrew the offer and he subsequently was forced to accept a plea offer of five years in prison.
These allegations state a prima facie claim of ineffective assistance of counsel. White v. State, 731 So. 2d 74 (Fla. 2d DCA 1999). Therefore, unless conclusively refuted by the record, Appellant is entitled to an evidentiary hearing.
We therefore reverse the lower court’s order and remand this cause with instructions that the lower court either conduct an evidentiary hearing on the claim or attach specific portions of the record that conclusively refute Appellant’s allegations.
REVERSED AND REMANDED.
ORFINGER and TORPY, JJ., concur. GRIFFIN, J., concurs and concurs specially with opinion.
GRIFFIN, J.,
concurring specially.
In my view, the record does refute Appellant’s claim that he agreed to accept the eighteen month offer but that his attorney failed to communicate his acceptance to the State. Whether it conclusively refutes the claim is hard to say, given the incoher ence of Appellant’s various statements and the sparse record before us. The trial court did conduct a pretty thorough hearing. Maybe sworn testimony of Appellant’s counsel or a transcript of the September 19 hearing would resolve any doubt.
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Citator
Cited By
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Morris v. State, 50 So. 3d 696 (Fla. 5th DCA 2010)…2d 74 (Fla. 2d DCA 1999). Further, an ineffective assistance of counsel claim can be based on counsel’s advice to reject a plea offer. Morgan v. State, 991 So. 2d 835 (Fla.2008); Colon v. State, 909 So. 2d 484 (Fla. 5th DCA 2005). In Birch v. State, 961 So. 2d 1112 (Fla. 5th DCA 2007), we [*698] held that a defendant was entitled to an evidentiary hearing on a claim that counsel was ineffective for failing to accept a plea offer before the State withdrew it because the claim was not conclusively refuted by the…
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Fournier v. State, 204 So. 3d 976 (Fla. 5th DCA 2016)…ure to convey a client’s acceptance of a plea offer to the State can constitute ineffective assistance of counsel.” Morris v. State, 50 So. 3d 696, 697 (Fla. 5th DCA 2010) (citing White v. State, 731 So. 2d 74 (Fla. 2d DCA 1999)). In Birch v. State, 961 So. 2d 1112 (Fla. 5th DCA 2007), we determined that allegations in a rule 3.850 motion for postconviction relief that were similar to those raised here stated a prima facie claim of ineffective assistance of counsel that, unless conclusively refuted by the reco…
Authorities Cited
- White v. State, 731 So. 2d 74 (Fla. 2d DCA 1999)