VERNARDO J. GRAY, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Orange County, Heather L.
Vernardo J. Gray, Malone, pro se.
Appearance for Appellee.
Vernardo J. Gray, appeals the trial court's order
summarily denying his motion for postconviction relief.
Appellant was convicted of attempted second-degree murder
(count 1) and aggravated assault with a firearm (count 2). He
was sentenced to concurrent terms of thirty years in prison
on count 1 and twenty years in prison on count 2. Appellant
timely filed an original, then an amended, and finally a
second amended motion for postconviction relief pursuant to
Florida Rule of Criminal Procedure 3.850. In his motion,
Appellant raises four claims of ineffective assistance of
counsel. The postconviction court summarily denied all four
claims. For the reasons set forth below, we reverse as to
Claim One and affirm as to Claims Two, Three, and Four.
order to successfully argue ineffective assistance of
counsel, a defendant must allege that counsel's
performance was deficient and that he or she was prejudiced
as a result. See Maxwell v. Wainwright, 490 So.2d
927, 932 (Fla. 1986) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984) (additional
citation omitted)). To show that counsel's performance
was deficient, the defendant "must identify particular
acts or omissions of the lawyer that are shown to be outside
the broad range of reasonably competent performance under
prevailing professional standards." Id. To show
the requisite prejudice, the defendant must demonstrate a
"reasonable probability that, but for counsel's
unprofessional errors, the results of the proceeding would
have been different." Wainwright v. State, 896
So.2d 695, 698 (Fla. 2004) (quoting Strickland, 466
U.S. at 694). "A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
Id. (quoting Strickland, 466 U.S. at 694).
Claim One, Appellant alleges that defense counsel was
ineffective for advising Appellant to reject the State's
plea offer of five years in the Department of Corrections.
Appellant asserts that defense counsel incorrectly advised
him that Appellant's recorded statement could not be
admitted in evidence, and that without that evidence, the
State's case was "extremely weak." Appellant
claims that if defense counsel had made him aware of the
potential that his recorded statement would be admissible, he
would have accepted the State's offer of five years. He
further asserts that the State would not have withdrawn its
offer and that the offer would have been accepted by the
trial court, resulting in a significantly shorter prison
order summarily denying Claim One, the trial court explained
that because defense counsel inquired about the recorded
statement just prior to trial, Appellant was on notice that
the statement would be admitted. The trial court thus
concluded that because of this knowledge Appellant cannot
establish that defense counsel was ineffective. To uphold a
summary denial by the trial court, "the claims must be
either facially invalid or conclusively refuted by the
record." Peede v. State, 748 So.2d 253, 257
(Fla. 1999) (citing Fla. R. Crim. P. 3.850(d)). The
allegations of defendant's motion are assumed to be true
unless conclusively refuted by the record. See Fla.
R. Crim. P. 3.850(f)(4)-(6) (permitting summary denial of
claims only if "conclusively refuted" by the
record); Freeman v. State, 761 So.2d 1055, 1065 n.9
claim that misinformation supplied by counsel induced a
defendant to reject a favorable plea offer can constitute
actionable ineffective assistance of counsel." Colon
v. State, 909 So.2d 484, 490 (Fla. 5th DCA
2005) (quoting Steel v. State, 684 So.2d 290, 291
(Fla. 4th DCA 1996)). The Florida Supreme Court has stated as
[I]n order to show prejudice, the defendant must demonstrate
a reasonable probability, defined as a probability sufficient
to undermine confidence in the outcome, 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, 422 (Fla. 2013).
claims that defense counsel told him that his recorded
statement could not be admitted. The trial transcript shows
that defense counsel asked the trial court for additional
time to review the recorded statements with Appellant. To the
extent that defense counsel may have privately misadvised
Appellant regarding the admissibility of the recorded
statement, the record does not conclusively refute this
claim. The transcript suggests that Appellant was not in the
courtroom when defense counsel discussed the statement with
the court. Specifically, defense counsel informed the court
that he had discussed certain matters with Appellant
"downstairs" and would like to have a few minutes
to discuss the State's plea offer "once [Appellant
was] upstairs." Additionally, the record does not show
that Appellant formally rejected the plea offer or that the
trial court inquired about the plea offer.
Appellant's claim is facially sufficient and because the
record does not conclusively refute Claim One, we reverse and
remand for the postconviction court to attach the records
that conclusively refute ...