MAYKEL TORRES
v.
STATE OF FLORIDA
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A defendant states a cognizable ineffective assistance claim when counsel fails to advise him about a statutory inference that would negate his defense and materially affects the likelihood of conviction, and he alleges he would have accepted a more favorable plea if properly advised.
[1] A defendant may be entitled to postconviction relief when trial counsel provides unreasonable advice to reject a plea offer.
[2] Summary denial of a motion for postconviction relief is improper when the record does not conclusively refute the defendant's allegations of ineffective assistance of cou…
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Join FLexlaw to unlock all legal intelligence“In a trial on the charge of burglary, proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof is prima facie evidence of entering with intent to commit an offense.”
Statutory provision establishing the stealthy entry inference in Florida burglary law that was at the center of the ineffective assistance claim.
Torres was convicted of burglary and sentenced to twenty years as a habitual felony offender with a fifteen-year mandatory minimum. He filed a rule 3.…
The full statement of facts, procedural history, and disposition for this case are member content.
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MAYKEL TORRES,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D20-299
[July1, 2020]
Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Bernard Bober, Judge; L.T. Case No. 13-1742 CF10A.
Carla P. Lowry of Lowry At Law, P.A., Fort Lauderdale, for appellant. Ashley Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Maykel Torres appeals the summary denial of his rule 3.850 motion for post-conviction relief, in which he raised two grounds for relief. We affirm the summary denial of ground two without comment but reverse and remand for an evidentiary hearing on ground one.
Torres was convicted of burglary of a dwelling and sentenced to twenty years in prison as a habitual felony offender, with a fifteen-year mandatory minimum as a prison releasee reoffender, to be followed by two years of community control and eight years of probation. The conviction and sentence were affirmed on direct appeal. Torres v. State, 227 So. 3d 595 (Fla. 4th DCA 2017) (unpublished table decision).
In ground one of his rule 3.850 motion, Torres claimed counsel was ineffective for failing to advise him that the state would be able to rely on the “stealthy entry” inference to prove intent. See § 810.07(1), Fla. Stat. (2013) (“In a trial on the charge of burglary, proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof is prima facie evidence of entering with intent
to commit an offense.”). He alleged that this inference negated his sole defense, and if counsel had properly advised him about it, he would have accepted the state’s plea offer of nine years in prison instead of going to trial.
Torres’s claim was sufficiently pleaded and was not refuted by the record. He alleged a specific deficiency in counsel’s advice, namely that counsel misadvised him as to the likelihood that he would be convicted at trial by failing to advise him about the stealthy entry inference. See Mook v. State, No. 4D19-1422, 45 Fla. L. Weekly D689 (Fla. 4th DCA Mar. 25, 2020); Brice v. State, 162 So. 3d 81, 82-83 (Fla. 4th DCA 2014). He also alleged a reasonable probability that he would have accepted the plea, and would have received a lesser sentence, if counsel had properly advised him. See Alcorn v. State, 121 So. 3d 419, 430 (Fla. 2013).1
Accordingly, we reverse the summary denial of ground one and remand for an evidentiary hearing.
Affirmed in part; reversed in part and remanded. LEVINE, C.J., MAY and CIKLIN, JJ., concur.
* * * Not final until disposition of timely filed motion for rehearing.
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Citator
Cited By
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Maykel Torres v. State, 45 Fla. L. Weekly D689 (Fla. 4th DCA 2020)
Authorities Cited
- Alcorn v. State, 121 So. 3d 419 (Fla. 2013)
- Dominique Brice v. State, 162 So. 3d 81 (Fla. 4th DCA 2014)
- Maykel Torres v. State, 45 Fla. L. Weekly D689 (Fla. 4th DCA 2020)
- Torres v. State, 227 So. 3d 595 (Fla. 4th DCA 2017)