FRED MASSARO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Fred Massaro appeals the summary denial of his Rule 3.850 motion alleging ineffective assistance of counsel for misadvising him about the maximum sentence he faced on a probation violation charge. The court reverses and remands one of two challenged claims, holding that summary denial was improper where the motion was under oath, supported by a transcript reference to a plea, and not refuted by the record.
The court reversed the summary denial of one ineffective assistance claim and remanded for further proceedings. The court held that where a Rule 3.850 motion is filed under oath, supported by a transcript with a plea reference, and not refuted by the record, summary denial is improper and the trial court must conduct further proceedings to determine prejudice.
[1] A defendant's claim of ineffective assistance of counsel based on misadvice regarding the maximum sentence, which led to the rejection of a plea offer, may establish prej…
[2] A trial court may not summarily deny a sworn motion for postconviction relief alleging ineffective assistance of counsel if the claim is not refuted by the record.
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“courts are entitled to accept the defendant's undisputed, yet self-serving, allegation that he would have taken the plea offer but for being misadvised on the proper statutory maximum as a basis for finding prejudice, but courts are not precluded from rejecting such a statement either”
Establishes that while courts may accept a defendant's allegation of prejudice, they are not required to do so, and must conduct further proceedings to determine prejudice
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMassaro's trial counsel allegedly misadvised him of the maximum sentence he faced regarding a pending violation of probation. As a result, Massaro rej…
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Fred Massaro appeals the summary denial of his multi-point rule 3.850 motion alleging ineffective assistance of trial counsel. See Fla. R. Crim. P. 3.850. Massaro challenges the trial court’s summary denial of two points. We reverse and remand for further review of one of those claims.
Massaro alleges that counsel was ineffective for misadvising him of the maximum sentence he faced with respect to his pending violation of probation (VOP), and as a result, he rejected a twelve-year plea offer. Following a VOP hearing, the trial court sentenced Massaro to a thirty-five-year prison term with credit for 2,750 days served.
Massaro filed his rule 3.850 motion before the Florida Supreme Court issued its decision in Alcorn v. State, 121 So.3d 419 (Fla.2013). Alcorn explained the proper prejudice inquiry associated with such a claim of misadvice. Id. at 431-32 (citing Missouri v. Frye, — U.S. -, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012)).
Responding to this court’s order to show cause, the State does not argue that the motion is legally insufficient. Compare Gibson v. State, 122 So.3d 428 (Fla. 4th DCA 2013). Rather, it points to the language within Alcorn that “courts are entitled to accept the defendant’s undisputed, yet self-serving, allegation that he would have taken the plea offer but for being misadvised on the proper statutory maximum as a basis for finding prejudice, but courts are not precluded from rejecting such a statement either.” 121 So.3d at 431-32. In making that statement, the Supreme Court was explaining that “[n]o single piece of evidence will absolutely mandate or foreclose a finding of prejudice under any and every scenario.” Id. at 431.
Unlike Alcorn, the trial court summarily denied Massaro’s claim. Massaro’s motion was filed under oath and supported with a transcript wherein there is a reference to a plea. See Fla. R. Crim. P. 3.850. The claim was not refuted by the record furnished. We, therefore, reverse and remand the case to the trial court for further proceedings. See, e.g., Gribble v. State, 120 So.3d 153 (Fla. 4th DCA 2013).
Affirmed in part, reversed in part and remanded.
STEVENSON, GROSS and CIKLIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cobb v. State (Fla. 3d DCA 2020)…scenario.” Alcorn v. State, 121 So. 3d 419, 431-32 (Fla. 2013). Accordingly, a trial court errs by summarily denying such a postconviction claim, filed under oath and supported with a transcript wherein a plea is referenced. See Massaro v. State, 127 So. 3d 690, 691 (Fla. 4th DCA 2013). available to testify at trial.”); McLin v. State, 827 So. 2d 948, 954 (Fla. 2002) (“[W]here no evidentiary hearing is held below, we must accept the defendant’s factual allegations to the extent they are not refuted by t…
Authorities Cited
- Lafler v. Cooper, 566 U.S. 156 (U.S. 2012)
- Alcorn v. State, 121 So. 3d 419 (Fla. 2013)
- Missouri v. Frye, 566 U.S. 134 (U.S. 2012)
- Gribble v. State, 120 So. 3d 153 (Fla. 4th DCA 2013)
- Gutierrez v. State, 122 So. 3d 428 (Fla. 2d DCA 2013)
- Gibson v. State, 122 So. 3d 428 (Fla. 4th DCA 2013)