DIEUGRAND JACQUES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant's motion for postconviction relief sufficiently alleged ineffective assistance of counsel and warranted an evidentiary hearing.
[1] A defendant's postconviction claim of ineffective assistance of counsel for failure to convey a plea offer may satisfy the elements of Alcorn v. …
[2] A defendant's failure to allege the precise length of a probationary plea offer is not fatal to a postconviction claim if any term of probation without prison time is lik…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of lewd molestation and sentenced to prison. He filed a motion for postconviction relief, alleging his counsel failed to conve…
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We reverse the summary denial of appellant’s motion seeking postconviction relief under Florida Rule of Criminal Procedure 3.850 and remand to the circuit court for an evidentiary hearing.
After a jury trial, appellant was convicted of lewd or lascivious molestation and sentenced to 10 years in prison.
In a timely Rule 3.850 motion, appellant claimed ineffective assistance of counsel in failing to convey to him a plea offer of *1066probation. His motion satisfied the elements of Alcorn v. State, 121 So.3d 419 (Fla.2013). He claimed that after his conviction he learned that, just before trial, the prosecutor had conveyed to defense counsel an offer involving probation and registration as a sex offender, but counsel rejected the offer without consulting him. Appellant alleged that he.would have accepted the plea offer and his' sentence would have been less severe than his 10-year prison sentence. There was no indication that the prosecutor would have withdrawn the plea or the trial court would have rejected it.
The state’s response to the motion argued that appellant failed to state the length of the offered probationary term, so it cannot be detérmined whether the offered sentence was less severe than 10 years in prison. Also, the state pointed to appellant’s remarks at sentencing and letters he had written, in which he steadfastly maintained his’innocence.
The state’s response to the motion did not conclusively refute’ appellant’s claim. Failing to allege the length of the offered probationary term was not fatal to appellant’s motion; almost any term .of probation without prison time is viewed as less harsh than a 10-year prison sentence. Although the attachments to the state’s response strongly suggest that appellant would not have accepted the plea, they do not conclusively refute his allegation that he would have. Even those who believe they are innocent may enter a plea under North Carolina v. Alford, .400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
Reversed and remanded.
DAMOÓRGIAN and KLINGENSMITH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Rashawn Clark v. State, 236 So. 3d 481 (Fla. 4th DCA 2018)
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Inestin Petit-Homme v. State, 205 So. 3d 848 (Fla. 4th DCA 2016)…nsitive. He said that once he told appellant of the offer, appellant asked him to prepare an affidavit as soon as possible. Failure of counsel to convey a plea offer can constitute ineffective assistance of trial counsel. See e.g. Jacques v. State, 193 So. 3d 1065 (Fla. 4th DCA 2016). Appellant’s claim comports with Alcorn v. State, 121 So. 3d 419 (Fla.2013). Appellant said he would have accepted the offer, as would the trial judge, given “the general practice of accepting plea negotiations between the State…
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Taylor v. State, 248 So. 3d 280 (Fla. 5th DCA 2018)…diligent in his untimely pursuit." The failure to convey a favorable plea offer to a defendant in a criminal case can constitute ineffective assistance of counsel. Clark v. State , 236 So. 3d 481, 483 (Fla. 4th DCA 2018) (citing Jacques v. State , 193 So. 3d 1065, 1066 (Fla. 4th DCA 2016) ). To adequately plead this claim, a defendant must allege "that (1) he or she would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (3) the court…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- North Carolina v. Alford, 400 U.S. 25 (U.S. 1970)
- Alcorn v. State, 121 So. 3d 419 (Fla. 2013)