FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Nassau County. Robert M.
Stephen Elliot Drakus, pro se, Appellant.
Jo Bondi, Attorney General, Tallahassee, for Appellee.
challenges the circuit court's summary denial of his
postconviction motion filed pursuant to Florida Rule of
Criminal Procedural 3.850. Appellant raised 7 grounds in his
motion. We find that the court erred in summarily denying
ground 1 because it was not conclusively refuted by the
record; however, we also find that claim was legally
insufficient. Thus, we reverse and remand for the circuit
court to allow appellant the opportunity to amend ground 1.
We affirm the denial of the remaining claims.
review the summary denial of claims for postconviction relief
to determine whether the claims are legally sufficient and
whether they are conclusively refuted by the record."
Griggs v. State, 995 So.2d 994, 995 (Fla. 1st DCA
ground 1 of his motion, appellant alleged that counsel was
ineffective for advising him to reject a 15-year plea offer
because counsel was certain that a newly assigned prosecutor
would offer a better deal. However, the new prosecutor did
not. Appellant asserted that but for counsel's advice, he
would have accepted the 15-year plea offer and the trial
court would not have rejected the plea offer.
postconviction court found this claim was conclusively
refuted by 3 statements made by appellant and his counsel
during a pre-trial hearing. In the first two statements,
appellant said that he was fully prepared to proceed to
trial, and there was nothing else he wanted his lawyer to do
to ensure they were both ready for trial. In the third
statement, defense counsel stated that she had communicated
all plea offers to appellant, explaining that "[t]here
have not been any [offers] for some time. Back when the
[prior prosecutor] had the case  the State  made a 15
year plea offer, which . . . [appellant] did not wish to
accept at that time." The court found these statements
demonstrated that the "decision to reject the offer was
solely [appellant's]" and that appellant "made
no objection to the matter being set for trial."
these statements conclusively refute, or even address,
appellant's claim that he rejected the 15-year plea offer
due to counsel's advice that a better offer would be
forthcoming. The first two statements merely established that
appellant and his counsel were prepared for trial. In the
third statement, counsel confirmed that appellant rejected
the 15-year plea offer, but did not state why.
also unclear why the postconviction court believed
appellant's claim of ineffective assistance was refuted
by appellant's failure to object to going to trial. It is
not apparent on what grounds the court believed that
appellant could have objected. Perhaps the postconviction
court believed that if appellant still wanted to accept the
15-year plea deal, he should have stated so at that time.
However, there is no indication in the record that the offer
was still on the table. Defense counsel implied the opposite
by stating that there "have not been any [offers] for
some time." Thus, the record does not conclusively
refute appellant's claim of ineffective assistance of
counsel, and the postconviction court erred in summarily
denying this claim.
although not addressed by the postconviction court,
appellant's claim was facially insufficient.
[C]oncerning ineffective assistance of counsel claims in
which the defendant rejected a plea offer based on misadvice.
. . . in 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