MICHAEL GOLDBERG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Goldberg appeals the summary denial of his rule 3.850 motion for post-conviction relief alleging ineffective assistance of counsel. The court reverses and remands as to his claim that counsel failed to convey a plea offer, but affirms the denial of his six remaining ineffective assistance claims.
The court held that Goldberg's claim was facially sufficient under the Cottle standard applicable at the time the motion was filed, and therefore the trial court erred in summarily denying it. The court reversed and remanded for further proceedings on this claim, though the law may have changed after the motion was filed.
[1] A defendant's claim that counsel failed to convey a plea offer is facially sufficient if the defendant alleges counsel failed to convey the offer, that the defendant woul…
[2] A defendant seeking post-conviction relief for counsel's failure to convey a plea offer must allege that the prosecutor would not have withdrawn the offer and the court w…
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Join FLexlaw to unlock all legal intelligence“Goldberg's claim is facially sufficient under Cottle and is not conclusively refuted by the record, the trial court erred in summarily denying it.”
Establishes the standard for facial sufficiency of ineffective assistance claims and why summary denial was improper.
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Join FLexlaw to unlock all legal intelligenceFollowing a jury trial, Goldberg was convicted of two counts of battery on a law enforcement officer and aggravated fleeing and elueling. He received …
The full statement of facts, procedural history, and disposition for this case are member content.
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Michael Goldberg appeals the summary denial of his rule 3.850 motion for post-conviction relief, in which he alleged seven claims -of ineffective assistance of counsel. We reverse and remand for further .proceedings as to Goldberg’s claim that cojm-sel failed to convey a plea offer. We affirm the denial of Goldberg’s remaining elaims without comment.
Following a jury trial, Goldberg was convicted of two counts of battery on a law enforcement officer and aggravated fleeing and eluding. The trial court imposed two terms of ten years in prison as to the battery charges and one term of thirty years in prison as to the aggravated fleeing and eluding, all habitual felony offender sentences, to run concurrently.
Goldberg alleges that counsel failed to inform him of a plea offer of fifteen years in prison. He claims that if he had been *848properly informed, he would have accepted the plea and would not have gone to trial. Acceptance of this offer would have resulted in a lesser sentence than the thirty years in prison he is currently serving.
Under the law in effect at the time his motion was filed, Goldberg’s claim is facially sufficient. Cottle v. State, 733 So.2d 963 (Fla.1999), required a defendant to allege only that (1) coun'sel failed to convey a plea offer; (2) he would have accepted the. plea offer but for counsel’s failure to convey it; and (3) acceptance of the plea would have resulted ,in a lesser sentence than was ultimately imposed. See id. at 967.
Because Goldberg’s claim .is facially sufficient under Cottle and is not conclusively refuted by the record, the trial court erred in summarily denying it. After Goldberg’s motion was filed, the Florida Supreme Court decided Alcorn v. State, 121 So.3d 419 (Fla.2013), in which it receded from Cottle and held that a defendant must also allege that the prosecutor would not have withdrawn the plea offer and the court would have accepted it. See Alcorn, 121 So.3d at 429-30. Accordingly,’ we reverse and remand for further proceedings as to Goldberg’s claim that counsel failed to convey a plea offer of fifteen years in prison.
. Affirmed in part, reversed in part, and remanded. , .
TAYLOR, CONNER and . KLINGEÑSMITH, JJ., concur.
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Citator
Authorities Cited
- Alcorn v. State, 121 So. 3d 419 (Fla. 2013)
- Cottle v. State, 733 So. 2d 963 (Fla. 1999)