FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit
Court for Polk County; William D. Sites, Judge.
Leonard Richard Filipkowski, pro se.
LAROSE, CHIEF JUDGE.
Richard Filipkowski appeals a final order summarily denying
his motion and amended motions for postconviction relief.
See Fla. R. Crim. P. 3.850. He sought relief on
three grounds. Grounds one and two are legally insufficient
or conclusively refuted by the record. Accordingly, we
affirm, without further discussion, the order as to those
grounds. In ground three, however, Mr. Filipkowski may be
able to state a facially sufficient claim if given an
opportunity to amend his motion to assert the requisite
prejudice. We reverse the order as to ground three and direct
the postconviction court to strike it with leave to amend
within a reasonable time.
Filipkowski pleaded no contest and was convicted of four
counts of lewd and lascivious molestation of a victim over
twelve and under sixteen years of age; two counts of lewd and
lascivious exhibition to a victim under sixteen years of age;
battery; possession of a photograph of a sexual performance
by a child; and use of a computer server to seduce, solicit,
or entice a child. The trial court sentenced Mr. Filipkowski
to time served on the battery count; it imposed consecutive
five-year sentences for a total of forty years'
imprisonment on the remaining counts. Mr. Filipkowski did not
pursue a direct appeal.
Filipkowski filed a timely, counseled motion for
postconviction relief. In ground three, he alleged that his
plea was involuntary because the trial court failed to
explain, as required by Florida Rule of Criminal Procedure
3.172(c)(1), that the maximum possible sentence was 105
years' imprisonment if the court imposed consecutive
sentences for each offense. Allegedly, "he would
not have entered into the Plea Agreement he did had
he been informed of the maximum number of years that could be
imposed or that the Counts to which he was entering his plea
could be run consecutively; totaling up to 105 years."
Filipkowski also alleged that his trial counsel was
ineffective for failing to advise him of the plea terms,
including the possibility of a 105-year prison term. Mr.
Filipkowski failed to allege prejudice resulting from
counsel's alleged deficient performance. Instead, he
recognized that he "must meet a high threshold to
withdraw a plea after Sentencing, and it is [his] burden to
prove that a manifest injustice has occurred and that a
withdrawal of the plea is necessary to correct that
injustice, [and] is prepared to assume that burden." He
asked to withdraw his plea. Alternatively, Mr. Filipkowski
requested an evidentiary hearing to determine whether his
plea was voluntary.
State responded that any failure by the trial court to comply
with rule 3.172(c)(1) was a trial court error not subject to
collateral review. The State conceded, however, that Mr.
Filipkowski was entitled to raise the claim under
Marckman v. State, 997 So.2d 1275 (Fla. 2d DCA
2009). Even so, the State argued that the record conclusively
refuted Mr. Filipkowski's claim that the trial court
failed to comply with rule 3.172(c)(1). It argued that rule
3.172(c)(1) only requires a trial court to advise a defendant
of the maximum penalty for each offense, which was done.
Thus, the State argued that ground three should be denied.
reply, Mr. Filipkowski contended that he was entitled to an
evidentiary hearing on his claim that trial counsel failed to
inform him about the prospect of consecutive sentences. He
maintained that "while it is true that the trial court
never advised [him] of the fact that the maximum sentences on
all Counts could be run consecutive . . . his trial counsel
affirmatively misadvised him of his exposure to consecutive
sentencing as well." He requested that "to the
extent that the [postconviction court] determines that it is
required that [he] swear, under oath, that but-for the
ineffectiveness of his trial counsel as to the consequences
of his plea, he would have proceeded to trial, " he be
given a reasonable opportunity to amend his motion in
accordance with Spera v. State, 971 So.2d 754 (Fla.
the postconviction court summarily denied relief on ground
Defendant's third claim is that his plea was
involuntarily entered as he was never informed of his maximum
statutory exposure. During the plea colloquy, the Defendant
was informed that counts one through seven and nine were
second degree felonies, punishable by up to 15 years; and
that counts eight, ten, eleven and twelve are third degree
felonies punishable by up to 5 years. The Court agrees with
the State's response that this was sufficient to inform
the Defendant of the maximum possible penalty of the charges.
review an order summarily denying a postconviction motion de
novo. See Martin v. State, 205 So.3d 811, 812 (Fla.
2d DCA 2016). To plead a facially sufficient ineffective
assistance of trial counsel claim, Mr. Filipkowski must plead
facts establishing that his or her trial counsel's
performance was deficient and that he was prejudiced thereby.
See id. (citing Strickland v. Washington,
466 U.S. 668, 694 (1984)). "In the plea context, a
defendant satisfies the prejudice requirement only where he
can demonstrate 'a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial.' "
Hernandez v. State, 124 So.3d 757, 762 (Fla. 2012)
(quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
"[A] defendant is entitled to an evidentiary hearing on
a postconviction relief motion unless (1) the motion, files,
and records in the case conclusively show that the prisoner
is entitled to no relief, or (2) the motion or a particular
claim is legally insufficient." Freeman v.
State, 761 So.2d 1055, 1061 (Fla. 2000); see
also Fla. R. Crim. P. 3.850(f)(5).
reply, Mr. Filipkowski abandoned his claim of involuntary
plea based upon the trial court's failure to comply with
rule 3.172(c)(1). He focused on trial counsel's alleged
deficient performance. Counsel's alleged inaccurate advice
about the length of a sentence can be a basis for
postconviction relief when not conclusively refuted by the
record. Baker v. State, 879 So.2d 663, 664 (Fla. 5th
DCA 2004); see also Campbell v. State, 139 So.3d
490, 494 (Fla. 2d DCA 2014) (holding that a defendant's
allegation that had he been properly advised of the maximum
penalty that he faced he would not have entered a plea but