ALAN D. TAYLOR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE.

Fla. 5th DCA | 2018-06-08
No. Case No. 5D18–295
248 So. 3d 280 Florida District Court of Appeal, Fifth District (2018) Positive Treatment
Cited by 10 cases

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Synopsis

The appellate court reversed the summary denial of a postconviction relief motion, remanding to allow the defendant an opportunity to amend his motion which alleged ineffective assistance of counsel for failure to convey a plea offer.


Holding

The court held that a defendant must be given an opportunity to amend a postconviction motion alleging ineffective assistance of counsel for failure to convey a plea offer, even if the motion is facially insufficient, unless the defect is uncorrectable.


Headnotes

[1] Failure to convey a favorable plea offer to a defendant can constitute ineffective assistance of counsel.

[2] To adequately plead a claim of ineffective assistance for failure to convey a plea offer, a defendant must allege that they would have accepted the offer, the prosecutor…

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Facts & Procedural History

Alan D. Taylor, convicted of planting a hoax bomb and robbery, appealed the denial of his postconviction motion. He claimed his counsel was ineffectiv…

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Opinion of the Court
LAMBERT, J.

LAMBERT, J.

Alan D. Taylor appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. Taylor's sole ground for relief asserted in his motion was that his trial counsel was ineffective for failing to convey to him the State's favorable plea offer. Because this claim was not sufficiently pleaded, we reverse the postconviction court's order and remand to allow Taylor an opportunity to amend his motion.

In 2004, following a jury trial, Taylor was convicted of planting a hoax bomb and *281robbery. He was sentenced to serve fifteen years in prison on each count, with the sentences running concurrently on each count, but consecutively to a lengthy prison sentence that Taylor was serving out of Alachua County. Taylor's convictions and sentences were affirmed on direct appeal without opinion. See Taylor v. State , 923 So.2d 1184 (Fla. 5th DCA 2006).

In June 2017, Taylor filed the present motion alleging that in August 2015, he first became aware of a plea offer made by the State to his counsel shortly before trial in which the State offered to resolve the case with Taylor serving a thirteen-year prison sentence on count one, to run concurrently with his Alachua County prison sentence, and serving two years in prison on count two, consecutively to his prison sentence from Alachua County. Taylor averred that his counsel never informed him about this plea offer "at any time before, during, or after trial."

The postconviction court ordered the State to respond to Taylor's motion, which it did. The State asserted that Taylor's motion was untimely under rule 3.850 because it was filed more than two years after his judgment and sentence became final and Taylor could not show under the rule 3.850(b)(1) newly discovered fact exception to this two-year filing requirement that he could not have discovered the aforementioned plea offer by the exercise of due diligence. In denying Taylor's motion, the court agreed with the State that Taylor "was less than 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 would have accepted the offer, and (4) the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed." Alcorn v. State , 121 So.3d 419, 430 (Fla. 2013).

Here, Taylor's rule 3.850 motion was facially insufficient under Alcorn because he failed to allege that the prosecutor would not have withdrawn the plea offer. Under these circumstances, Taylor must be given at least one opportunity to correct the deficiency in his motion, unless it is apparent that the defect cannot be corrected. See Fla. R. Crim. P. 3.850(f) ; Lamb v. State , 202 So.3d 118, 120 (Fla. 5th DCA 2016) (citing Luckey v. State , 979 So.2d 353, 355 (Fla. 5th DCA 2008) ). Because Taylor had not previously sought or been given leave to amend his rule 3.850 motion, and because the pleading deficiency in his motion is likely correctable, he should be given the chance to do so. Accordingly, we reverse the summary denial and remand with directions that the postconviction court provide Taylor with sixty days to amend his motion, if, in good faith, he can amend it.1

*282REVERSED and REMANDED, with directions.

COHEN, C.J., and EDWARDS, J., concur.


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Citator

Cited By

  • Forbes v. State, 269 So. 3d 677 (Fla. 2d DCA 2019)
    …el's failure to convey a plea offer can constitute ineffective assistance of counsel." Gallant v. State, 898 So. 2d 1156, 1157 (Fla. 2d DCA 2005) (citing Whitten v. State, 841 So. 2d 578, 579 (Fla. 2d DCA 2003)); see also Taylor v. - 5 - State, 248 So. 3d 280, 281 (Fla. 5th DCA 2018) ("The failure to convey a favorable plea offer to a defendant in a criminal case can constitute ineffective assistance of counsel." (citing Clark, 236 So. 3d at 483)). To succeed, the postconviction movant must establish…
  • Trujillo v. State (Fla. 5th DCA 2018)
    …l court’s summary denial of Ground 1 of Appellant’s Florida Rule of Criminal Procedure 3.850 Motion for Postconviction Relief because Appellant should have been afforded the opportunity to amend his facially insufficient claim. See Taylor v. State, 248 So. 3d 280, 281 (Fla. 5th DCA 2018) (“Because [appellant] had not previously sought or been given leave to amend his rule 3.850 motion, and because the pleading deficiency in his motion is likely correctable, he should be given the chance to do so.”) The tria…
  • Trujillo v. State, 255 So. 3d 532 (Fla. 5th DCA 2018)

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