final until disposition of timely filed motion for rehearing.
of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Thomas M.
Lynch, V, Judge; L.T. Case No. 11-654CF10A.
Jermaine Brown, Milton, pro se.
Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.
Brown appeals an order summarily denying his Florida Rule of
Criminal Procedure 3.850 motion for post-conviction relief
alleging ineffective assistance of counsel. We affirm in part
and reverse and remand in part for further review of
appellant's claim that he rejected a favorable plea offer
based on counsel's advice regarding the strength of the
State's case and the strength of the evidence to impeach
was convicted of aggravated battery and simple battery
following a jury trial. The trial court sentenced him to a
twenty year prison term for the aggravated battery with a ten
year mandatory term as a habitual violent felony offender and
time served for the simple battery. This Court affirmed his
direct appeal. Brown v. State, 133 So.3d 941 (Fla.
4th DCA 2013).
timely filed a rule 3.850 motion raising eight grounds. In
ground six, he claimed that trial counsel was ineffective for
misadvising him to reject a favorable plea offer to a 58.4
month prison term. He alleges counsel told him that the case
boiled down to a credibility call and the victim's
initial "waiver of prosecution form" could serve to
impeach her. Appellant further alleges counsel told him that
the State could not win under the circumstances and that the
plea offer was excessive. Relying on this advice, he rejected
the plea offer.
record confirms that appellant rejected this plea offer
twice, once at a pretrial status hearing and again on the
morning of voir dire. The record also shows that during
opening comments, defense counsel told the jury that it would
hear from the victim that she made prior inconsistent
statements relative to the allegations.
Florida Supreme Court has held that a claim that counsel was
ineffective for advising the defendant to reject a plea offer
because counsel was confident that she could win at trial was
insufficient. Morgan v. State, 991 So.2d 835, 841
(Fla. 2008), rev'd on other grounds, Alcorn v.
State, 121 So.3d 419, 419 (Fla. 2013). Morgan
reasoned, "[t]he mere fact that [the defendant] did not
prevail at trial does not translate into misadvice. Some
specific deficiency on the part of counsel must be
specific deficiency was lacking in Morgan, where the
movant did not allege that "counsel's assessment of
the chances of success at trial was unreasonable under the
facts and circumstances of this case or that counsel had not
investigated or otherwise was not familiar with the
case." 991 So.2d at 841. Here, appellant alleged a
specific deficiency tied to counsel's value of the waiver
of prosecution as evidence to impeach the victim, and the
record reflects that the plea was available at least until
voir dire began. Clark v. State, No. 4D17-680, 2018
WL 355407, at *2 (Fla. 4th DCA Jan. 10, 2018) (citing
Jacques v. State, 193 So.3d 1065 (Fla. 4th DCA 2016)
("[T]here was no indication that the prosecutor would
have withdrawn the plea or the trial court would have
evaluating a claim of ineffective assistance resulting in a
rejected plea offer, "[p]rejudice. . . . is determined
based upon a consideration of the circumstances as viewed at
the time of the offer and what would have been done with
proper and adequate advice." Alcorn, 121 So.3d
at 419, 432; see also Phillips v. State, 229 So.3d
426 (Fla. 2d DCA 2017); Armstrong v. State, 148
So.3d 124, 126 (Fla. 2d DCA 2014). The "waiver of
prosecution" was not mentioned during the trial. The
trial transcript suggests that coercion issues may have
arisen surrounding the waiver, but it does not reflect when
those issues arose, whether counsel addressed the impact of
the coercion claims with appellant, or whether counsel could
or should have known of them when advising appellant.
find appellant's claim is sufficient and not refuted by
the record. Accordingly, we reverse the trial court's
summary denial of the claim and remand for it to either
attach records conclusively refuting appellant's claim,
or in the alternative, to hold an evidentiary hearing. We
affirm the summary denial of appellant's remaining
grounds without further discussion.
in part, reversed ...