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.
ON MOTION FOR REHEARING
consideration of appellee's motion for rehearing, we
grant the motion and withdraw this Court's opinion dated
February 28, 2018. The attached opinion is substituted
Brown appeals the summary denial of his motion for
post-conviction relief filed pursuant to Florida Rule of
Criminal Procedure 3.850. Appellant alleged eight claims in
his motion. We reverse the portion of the post-conviction
court's order that denied ground six and remand to allow
appellant an opportunity to amend this claim. We affirm,
without further discussion, the court's summary denial of
the remaining claims.
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.
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 that 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 alleges further that counsel told him
that the State could not win under the circumstances and that
the plea offer was excessive. Allegedly relying on this
advice, he rejected the plea offer. Alcorn v. State,
121 So.3d 419 (Fla. 2013).
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, 121 So.3d at 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 alleged." Id. While a specific
deficiency was lacking in Morgan, here appellant
alleged a specific deficiency tied to counsel's value of
the waiver of prosecution as evidence to impeach the victim.
the State is correct that appellant failed to allege two of
Alcorn's four pleading
requirements. Specifically, appellant failed to allege
that the State would not have withdrawn the offer, and that
the trial court would have accepted the offer. Ramos v.
State, 141 So.3d 643, 644 (Fla. 4th DCA 2014) ("His
claim is also facially insufficient under Alcorn
because he does not state that the prosecutor would not have
withdrawn the offer and that the court would have accepted
it."); Armstrong v. State, 148 So.3d 124, 126
(Fla. 2d DCA 2014) ("Armstrong failed to allege that the
prosecutor would not have withdrawn the offer and that the
court would have accepted it."). We are bound by
Alcorn and its pleading requirements.
the pleading defects may be correctable, appellant should be
given the opportunity to do so. See Drakus v. State,
219 So.3d 979, 982 (Fla. 1st DCA 2017) (reversing the portion
of the trial court's order summarily denying the
appellant's claim, not on the merits, as found by the
trial court, but because the claim was facially
insufficient); see also Spera v. State, 971 So.2d
754, 761 (Fla. 2007) (holding that a defendant who files a
legally insufficient 3.850 motion for failing to meet
pleading requirements should be allowed at least one
opportunity to amend the motion); Fla. R. Crim. P. 3.850(f).
we reverse the summary denial and remand with directions for
the trial court to provide appellant sixty days to amend
claim six of his motion, if he can do so in good ...