final until disposition of timely filed motion for rehearing.
of order denying rule 3.850 motion from the Circuit Court for
the Nineteenth Judicial Circuit, Martin County; Lawrence M.
Mirman, Judge; L.T. Case No. 08001180CFBXMX.
Rashawn Clark, Arcadia, pro se.
Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for
Clark appeals an order summarily denying as untimely a Rule
3.850 motion for postconviction relief. The record does not
conclusively refute his claim that the newly discovered fact
exception applies. Fla. R. Crim. P. 3.850(b)(1). We reverse
and remand for an evidentiary hearing or attachment of
portions of the record conclusively showing appellant is not
entitled to relief.
April 2009, Clark entered a plea to armed robbery. The offer
he accepted provided for a 20-year cap on the prison
sentence. The court sentenced him to 20 years in prison
followed by 10 years of probation. This Court affirmed on
direct appeal without a published opinion, on September 13,
2010. Clark v. State, 41 So.3d 229 (Fla. 4th DCA
2010) (table). Clark filed a timely Rule 3.850 motion that
was denied after evidentiary hearing and affirmed on appeal.
Clark v. State, 138 So.3d 1038 (Fla. 4th DCA 2014)
December 2016, Clark filed the present Rule 3.850 motion
claiming ineffective assistance of counsel based on
"newly discovered evidence." See Fla. R.
Crim. P. 3.850(b)(1) (providing an exception to the two-year
time limit where "the facts on which the claim is
predicated were unknown to the movant or the movant's
attorney and could not have been ascertained by the exercise
of due diligence"). He claimed that trial counsel failed
to convey a plea offer of 15 years in prison with 5 years of
probation. The plea offer was dated February 26, 2009, and
Clark alleged that he did not discover the offer until August
trial court summarily denied the motion as untimely, stating
that the plea offer was not newly discovered evidence because
Clark's counsel was aware of the offer. We disagree. In
these circumstances, trial counsel's knowledge of the
plea offer is not imputed to Clark for purposes of the newly
discovered fact exception of Rule 3.850(b)(1). See
Petit-Homme v. State, 205 So.3d 848 (Fla. 4th DCA 2016)
(reversing a similar newly discovered plea offer claim and
remanding for further proceedings where the record did not
conclusively establish that defendant could have learned of
the offer within the two-year time limit). Clark's motion
stated a facially sufficient exception to the time limit. He
alleged that he was previously unaware of the offer because
counsel did not convey it and that he could not have learned
of the offer with due diligence within the two-year time
limit. The trial court failed to attach records
conclusively showing that the exception did not apply.
express no opinion on the merits of Clark's allegations
or whether he could have learned of the offer with due
diligence. The record simply fails to conclusively refute the
claim, so reversal is required. Fla. R. App. P.
9.141(b)(2)(D) ("On appeal from the denial of relief,
unless the record shows conclusively that the appellant is
entitled to no relief, the order shall be reversed and the
cause remanded for an evidentiary hearing or other
counsel's failure to convey a favorable plea offer can
constitute ineffective assistance of counsel. See,
e.g., Jacques v. State, 193 So.3d 1065 (Fla.
4th DCA 2016). Clark's motion satisfied the elements of
Alcorn v. State, 121 So.3d 419 (Fla. 2013). He
alleged that he would have accepted the plea offer and his
sentence would have been less severe than the 20-year prison
sentence he ultimately received. Nothing in the present
record suggests that the prosecutor would have withdrawn the
offer or that the trial court would have rejected it. See
Jacques, 193 So.3d at 1065.
response to this Court's order to show cause, the State
argues that Clark should have learned of the plea offer in
December 2012, when he received the record on appeal for his
previous Rule 3.850 motion. The State references a note on
the progress docket showing a plea offer was open until March
31, 2009. However, as argued by Clark in his reply, this does
not conclusively refute his claim because the note could
refer to a different plea offer, such as the one Clark
the record does not refute Clark's allegations that
defense counsel failed to convey a more favorable plea offer
and that Clark could not have learned of the offer within the
two-year time limit. We reverse and remand for either an
evidentiary hearing or attachment of portions of the record
that conclusively show that Clark is not entitled to relief.