FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Hernando County, Stephen E.
Toner, Jr., Judge.
S. Purdy, Public Defender, and Susan A. Fagan, Assistant
Public Defender, Daytona Beach, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Douglas T.
Squire, Assistant Attorney General, Daytona Beach, for
Michael Lee Brown appeals the postconviction court's
summary denial of ground one of his Florida Rule of Criminal
Procedure 3.850 motion. Appellant alleged that his trial
attorneys did not adequately advise him as to the
"details and the strength" of the State's case
and that had he been properly advised, he would have accepted
the State's plea offer of fifteen years'
imprisonment, instead of proceeding to trial. We agree that
the court erred in summarily denying ground one without
attaching refuting documents.
minor victim in this case told her mother that Appellant, who
is the victim's father, had sexual intercourse with her
on different dates and at different places. The mother told
the police, and later took her daughter to the doctor where
it was determined that the victim was pregnant. Under the
circumstances, the victim chose to terminate the pregnancy.
The police had DNA testing performed on the aborted fetus,
which initially identified no foreign DNA and showed results
only for the victim's DNA. A second test identified
Appellant as the father of the fetus with a 98.9% level of
was arrested, charged with, and convicted of three counts of
sexual battery on a person twelve to eighteen years old by a
person in familial/custodial authority, two counts of
lewd/lascivious molestation of a child twelve to sixteen
years old, and one count of lewd/lascivious exhibition by a
person eighteen years or older.
claimed in ground one of his motion for postconviction relief
that his counsel assured him that he had a strong case
because, among other things, the DNA evidence was
inconclusive and they would be able to introduce evidence of
the victim's other sexual encounters. Shortly before
trial, the trial court granted the State's motion in
limine pursuant to the rape shield laws. Appellant claims
that ruling should have made it clear to his counsel that
what Appellant understood to be an important part of his
defense had been defeated before trial commenced. Further, it
was clear prior to trial that the DNA results from the second
test were unquestionably consistent with Appellant being the
father of the aborted baby. Appellant alleges that, following
the ruling on the rape shield issue and with knowledge of the
damning DNA test results, the State made a plea offer of a
fifteen-year sentence in return for a guilty plea. Appellant
asserted in ground one that his trial counsel, armed with the
information discussed above, did not revise the case
evaluation nor did they advise him to accept that
fifteen-year offer, rather than risk the 135-year prison
sentence he received following his jury trial conviction.
postconviction court summarily denied ground one but held an
evidentiary hearing on grounds that are not the subject
matter of this appeal. The issues to be addressed in ground
one were whether counsel, following the rape shield ruling
and receipt of the DNA test results, were ineffective by
failing to revise their assessment of the strength of
Appellant's case or by failing to advise Appellant to
accept the State's fifteen-year prison offer. Rather than
address those issues directly as to ground one, the
postconviction court instead found that Appellant was not
prejudiced because defense trial counsel had "subjected
the State's case to a meaningful adversarial
claim that misinformation supplied by counsel induced a
defendant to reject a favorable plea offer can constitute
actionable ineffective assistance of counsel." Gray
v. State, 220 So.3d 464, 466 (Fla. 5th DCA 2017)
(quoting Colon v. State, 909 So.2d 484, 490 (Fla.
5th DCA 2005)). "If a ground's allegations are
facially sufficient (pled in sufficient detail), the trial
court must grant an evidentiary hearing unless the
allegations are legally invalid (legally insufficient on
their face) or records in the court's file conclusively
show that the defendant is entitled to no relief."
Lebron v. State, 100 So.3d 132, 133 (Fla. 5th DCA
2012) (citations omitted). We reverse the order as to ground
one because the postconviction court did not hold an
evidentiary hearing nor did it attach any records addressing
Appellant's ground one claims. Accordingly, we remand and
instruct the postconviction court to either conduct an
evidentiary hearing on the issues material to ground one or
attach documents that conclusively refute those issues.
AND REMANDED ...