HEVER RAMOS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hever Ramos appealed the summary denial of his rule 3.850 ineffective assistance of counsel motion. The court reversed and remanded to allow Ramos to amend his claim that counsel failed to advise him of the maximum possible sentence and consequences of rejecting a plea offer, while affirming denial of his remaining claims.
The court reversed and remanded to allow Ramos an opportunity to amend his claim because it was facially insufficient under the standards established in Alcorn v. State and Spera v. State, specifically because Ramos failed to state what he thought the maximum sentence could be and failed to allege that the prosecutor would not have withdrawn the offer and the court would have accepted it.
[1] A defendant may be entitled to an opportunity to amend a claim in a motion for postconviction relief if the claim is facially insufficient but could be made sufficient wi…
[2] Ineffective assistance of counsel may occur when an attorney fails to advise a defendant of the maximum possible penalty when conveying a plea offer.
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Join FLexlaw to unlock all legal intelligence“Counsel may be ineffective for failing to advise a defendant about the maximum possible penalty when conveying a plea offer.”
Establishes the applicable legal standard for ineffective assistance claims based on failure to advise of maximum penalty during plea negotiations.
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Join FLexlaw to unlock all legal intelligenceRamos was charged with sexual battery and rejected a state plea offer of fifteen years. He claimed his counsel failed to explain the sentence structur…
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Hever Ramos appeals the summary denial of a rule 3.850 motion. We reverse and remand to allow Ramos an opportunity to amend one claim pursuant to Spera v. State, 971 So.2d 754 (Fla.2007), and Alcorn v. State, 121 So.3d 419 (Fla.2013).
In claim 5 of Ramos’ supplemental rule 3.850 motion, he alleged that his attorney provided ineffective assistance that caused him to reject a favorable plea offer. Ramos alleged that counsel did not explain the sentence structure and consequences of rejecting the state’s plea offer. According to Ramos, counsel did not tell him that he could receive consecutive sentences and that the sexual battery charges in counts I and III would be reclassified to first degree felonies because multiple perpetrators were involved. Ramos alleged that this prevented him from making an informed decision about the state’s offer. Ramos also said that counsel misadvised him that the victim was not willing to testify because counsel told Ramos that the victim did not want to go to trial and wanted defense counsel to persuade him to accept the plea offer. Ramos alleged that if he had been adequately informed, he would have accepted the state’s plea offer.
Ramos has not shown that his attorney gave him any misadvice. The victim may in fact have been unavailable or unwilling to testify when the initial offer was made. But, in rejecting the offer, Ramos ran the risk that circumstances could change.
Counsel may be ineffective for failing to advise a defendant about the maxi*645mum possible penalty when conveying a plea offer. Alcorn, 121 So.3d at 426 (“No party disputes that counsel’s failure to advise a defendant of his or her exposure to an enhanced life sentence under Florida’s HFO sentencing statute during plea negotiations amounts to deficient performance.”); see also Lester v. State, 15 So.3d 728, 732 (Fla. 4th DCA 2009); McDowell v. State, 905 So.2d 999 (Fla. 4th DCA 2005); Pennington v. State, 34 So.3d 151, 155 (Fla. 1st DCA 2010); Williams v. State, 924 So.2d 897, 898-99 (Fla. 1st DCA 2006).
Without Ramos stating what he thought the maximum sentence could be, there may be no way to evaluate the objective reasonableness of his claim that he would have accepted the fifteen-year offer if counsel told him he could receive up to sixty-five years for the offenses in this case. Ramos may simply have been willing to risk whether the victim would appear for trial.
His claim is also facially insufficient under Alcorn because he does not state that the prosecutor would not have withdrawn the offer and that the court would have accepted it. Alcorn, 121 So.3d at 422.
On appeal, the state agrees that he should have been given leave to amend this claim.
Accordingly, we reverse and remand for the trial court to allow Ramos an opportunity to correct the pleading deficiencies in claim 5 if he can do so in good faith. See Fla. R. Crim. P. 3.850(f)(3). We affirm the summary denial of the remaining claims.
Affirmed in part, reversed in part, and remanded.
TAYLOR, CIKLIN and LEVINE, JJ., concur.
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Renny Armstrong v. State, 148 So. 3d 124 (Fla. 2d DCA 2014)…nd Lafler v. Cooper, — U.S. —, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012)). Armstrong failed to allege that the prosecutor would not have withdrawn the offer and that the court would have accepted it, prongs two and three of Alcorn. See Ramos v. State, 141 So. 3d 643 (Fla. 4th DCA 2014). Because Armstrong’s motion was pending at the time Alcorn was decided, the postconviction court was required to apply Alcorn in resolving the claim. See Odegaard v. State, 137 So. 3d 505, 513 (Fla. 2d DCA 2014) (LaRose, J., conc…
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Brown v. State, 243 So. 3d 1000 (Fla. 4th DCA 2018)…that appellant failed to allege two of Alcorn's four [*1002] pleading requirements.1 Specifically, appellant failed to allege that the State would not have withdrawn the offer, and that the trial court would have accepted the offer. Ramos v. State , 141 So. 3d 643, 644 (Fla. 4th DCA 2014) ("His claim is also facially insufficient under Alcorn because he does not state that the prosecutor would not have withdrawn the offer and that the court would have accepted it."); Armstrong v. State , 148 So. 3d 124, 126 (…
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Kenson Louima v. State, 247 So. 3d 564 (Fla. 4th DCA 2018)…cient where the attorney failed to advise the defendant of the maximum penalty that he or she faces or for misadvising the defendant that he or she does not qualify as a habitual offender if a plea is rejected. See, e.g., Alcorn; Ramos v. State, 141 So. 3d 643, 644-45 (Fla. 4th DCA 2014); Jackson v. State, 987 So. 2d 233, 234 (Fla. 4th DCA 2008); Cowart v. State, 864 So. 2d 583, 585 (Fla. 3d DCA 2004). This case presents a claim of misadvice as to factual information which was necessary to allow t…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Alcorn v. State, 121 So. 3d 419 (Fla. 2013)
- Pennington v. State, 34 So. 3d 151 (Fla. 1st DCA 2010)
- Lester v. State, 15 So. 3d 728 (Fla. 4th DCA 2009)
- State v. Mitchel Conde, 924 So. 2d 897 (Fla. 4th DCA 2006)
- Williams v. State, 924 So. 2d 897 (Fla. 1st DCA 2006)
- McDOWELL v. State, 905 So. 2d 999 (Fla. 4th DCA 2005)