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; William W.
Haury, Jr., Judge; L.T. Case No. 12-10035CF10A.
Louima, Florida City, pro se.
Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for
appeal from a summary denial of appellant's motion for
post-conviction relief, appellant contends that he is
entitled to an evidentiary hearing on his motion, as the
record does not conclusively refute his claim. He maintains
that his attorney provided ineffective assistance by advising
him to reject a plea and misinforming him that the lesser
included charge to the crime of carjacking was grand theft.
Appellant rejected the plea, and at trial, he was convicted
of a lesser included charge of robbery, increasing his
sentence far above the plea offer. We agree that the record
is insufficient to refute appellant's claims and reverse
for an evidentiary hearing.
was charged with carjacking. After rejecting a plea offer, he
went to trial and was convicted of the lesser included
offense of robbery. His conviction was affirmed on appeal,
although the sentence was reversed to determine whether he
qualified as a prison releasee reoffender. Louima v.
State, 175 So.3d 893, 896 (Fla. 4th DCA 2015). His PRR
status was confirmed on resentencing and affirmed on appeal.
his appeal was concluded, appellant filed a motion for
post-conviction relief based on ineffective assistance of
counsel. He alleged that the State had made a plea offer of
five years in prison for a conviction for grand theft. He
claimed that his attorney advised rejecting the plea, because
the case for carjacking was weak and the worst that appellant
would face would be a conviction for the lesser included
offense of grand theft, which was the State's offer.
Based upon this advice, appellant rejected the plea. He
alleges that his attorney was ineffective for failing to
advise him that a lesser included offense of carjacking was
robbery, for which he was ultimately convicted and sentenced
to fifteen years in prison. He would have accepted the offer
if his attorney had given him the correct information.
State contends that the record conclusively refutes
appellant's allegations. Prior to trial, the court
inquired of the plea offer and questioned appellant. The
State set forth the offer, including the fact that grand
theft was a lesser included offense. The court asked the
appellant whether anyone had coerced him or promised him
anything to reject the plea (generally the question asked
when a defendant is accepting a plea), to which appellant
responded "no." The State contends that appellant
"lied" by stating that no promises were made to
a legally sufficient claim of ineffective assistance for
advising a defendant to reject a plea offer, a defendant must
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 both, under
the offer's terms would have been less severe than under
the judgment and sentence that in fact were imposed.
Alcorn v. State, 121 So.3d 419, 430 (Fla. 2013). The
plea proceeding shows that the offer was confirmed in open
court; the court would have accepted the offer; and both the
conviction and sentence would have been less severe under the
plea offer. Appellant clearly alleged that he would have
accepted the offer had he been correctly advised. Therefore,
the sole question is whether misadvice as to the lesser
included offense to the main charge under these circumstances
constitutes ineffective assistance of counsel.
claim that misinformation supplied by counsel induced a
defendant to reject a favorable plea offer can constitute
actionable ineffective assistance of counsel." Lamb
v. State, 202 So.3d 118, 120 (Fla. 5th DCA 2016)
(quoting Colon v. State, 909 So.2d 484, 490 (Fla.
5th DCA 2005)). A claim of misinformation must be specific as
to the deficient performance by counsel. Id. In
Lamb, the alleged misadvice was the attorney's
claim that the defendant would win at trial. Without specific
deficiencies, such as a failure to investigate, the claim was
legally insufficient. Id. Where, however, the
misadvice involves the extent of penalties to which the
defendant may be subject, a sufficient claim is stated. An
ineffective assistance claim is sufficient where the attorney
failed to advise the defendant of the maximum penalty that he
or she faces or for misadvising the defendant that he or she
does not qualify as a habitual offender if a plea is
rejected. See, e.g., Alcorn; Ramos v.
State, 141 So.3d 643, 644-45 (Fla. 4th DCA 2014);
Jackson v. State, 987 So.2d 233, 234 (Fla. 4th DCA
2008); Cowart v. State, 864 So.2d 583, 585 (Fla. 3d
case presents a claim of misadvice as to factual information
which was necessary to allow the defendant to weigh whether
to accept the plea offer. Counsel misinformed the appellant
that the lesser included offense of carjacking was grand
theft, and that it carried a five-year prison sentence. This
was erroneous, as robbery is also a lesser included offense
of carjacking, and robbery carried a fifteen-year prison
sentence. This advice was not a promise by counsel of a
result, but erroneous factual information of the potential
range of penalties appellant faced should he proceed to
trial. Appellant rejected the plea offer, because he was
misinformed as to his exposure based upon the lesser included
offenses. Counsel's advice to appellant was correct
insofar as he ...