JAMES DIEUDONNE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2008-11-12
No. 4D08-2812
WARNER and GROSS, JJ., concur.
993 So. 2d 640 Florida District Court of Appeal, Fourth District (2008)

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Synopsis

James Dieudonne appeals the summary denial of his ineffective assistance of counsel motion under Florida Rule of Criminal Procedure 3.850. The court affirmed most grounds but reversed and remanded on two claims: failure to convey a plea offer and failure to object to a possible Bruton violation, finding the trial court failed to provide adequate record support for its denial.


Holding

The court reversed on both claims. On the plea offer claim, the court found it was facially sufficient under the Cottle standard and that an evidentiary hearing was necessary since the State provided no record evidence conclusively refuting it. On the Bruton claim, the court reversed because the trial court failed to attach the specific portions of the record cited in the State's response necessary for appellate review.


Headnotes

[1] A defendant alleging ineffective assistance of counsel for failure to convey a plea offer must establish that counsel failed to communicate the offer, that the defendant…

[2] A defendant's claim of ineffective assistance of counsel based on counsel's failure to convey a plea offer is facially sufficient if it meets the Cottle requirements, eve…

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Key Quotes

“To make a facially sufficient claim of ineffective assistance of counsel for failure to convey a plea offer, the defendant must allege that "(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."”

Establishes the three-part Cottle test for facial sufficiency of ineffective assistance claims based on failure to convey plea offers

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Facts & Procedural History

Dieudonne alleged his trial counsel failed to convey the State's plea offer of a sixty-month prison sentence, which he would have accepted for a lesse…

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Opinion of the Court
DAMOORGIAN, J.

DAMOORGIAN, J.

James Dieudonne appeals the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.850 motion in which he alleged ineffective assistance of counsel. We affirm without further discussion on all but two of Dieudonne’s grounds for relief.

As to the first ground in support of his rule 3.850 motion, Dieudonne alleges that his trial counsel failed to convey to him the State’s offer of a sixty-month prison sentence in exchange for a guilty plea. He asserts that, had he been informed of the offer, he would have accepted it and received a lesser sentence than he received after his trial.

To make a facially sufficient claim of ineffective assistance of counsel for failure to convey a plea offer, the defendant must allege that “(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.” Cottle v. State, 733 So. 2d 963, 967 (Fla.1999).

Dieudonne’s motion satisfies the requirements set forth in Cottle and, accordingly, his claim is facially sufficient. Although the State denied the existence of such a plea offer, the State has not provided record evidence that conclusively refutes Dieudonne’s claim. See Gilliam v. State, 857 So. 2d 1006, 1008 (Fla. 4th DCA 2003) (stating that the State’s “sworn” response denying that the defendant received a plea offer was not record evidence).

Accordingly, an evidentiary hearing is necessary to resolve this claim and, therefore, we reverse and remand for an evidentiary hearing.

Next, Dieudonne claims that his trial counsel was ineffective because he failed to object to a possible Bruton violation.1 When a trial court summarily denies a rule 3.850 motion, it must “either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion.” Anderson v. State, 627 So. 2d 1170, 1171 (Fla.1993) (citing Hoffman v. State, 571 So. 2d 449, 450 (Fla.1990)).

The trial court’s order denying Dieudonne’s motion incorporates the State’s response and attachments thereto. In its response the State cites to portions of the trial transcript to support its argument that Dieudonne was not prejudiced by his counsel’s failure to object because the co-defendant’s counsel made the objection, which the trial court overruled.

However, those portions of the transcript upon which the State relied were not attached to the State’s response or otherwise included in the record on appeal. In Gilliam, we stated that “[t]he attachment of portions of the record to the order of denial is essential for this court to perform its review function.” 857 So. 2d at 1008.

Accordingly, we reverse and remand for attachment of the specific parts of the record that refute Dieudonne’s second claim.

Affirmed in part; Reversed in part.

WARNER and GROSS, JJ., concur. . Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).


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