ALAN D. TAYLOR, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Putnam County, Scott C.
D. Taylor, Daytona Beach, pro se.
Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark
Wall, Assistant Attorney General, Daytona Beach, for
Taylor appeals the summary denial of his motion for
postconviction relief filed under Florida Rule of Criminal
Procedure 3.850. Taylor's sole ground for relief asserted
in his motion was that his trial counsel was ineffective for
failing to convey to him the State's favorable plea
offer. Because this claim was not sufficiently pleaded, we
reverse the postconviction court's order and remand to
allow Taylor an opportunity to amend his motion.
2004, following a jury trial, Taylor was convicted of
planting a hoax bomb and robbery. He was sentenced to serve
fifteen years in prison on each count, with the sentences
running concurrently on each count, but consecutively to a
lengthy prison sentence that Taylor was serving out of
Alachua County. Taylor's convictions and sentences were
affirmed on direct appeal without opinion. See Taylor v.
State, 923 So.2d 1184 (Fla. 5th DCA 2006).
2017, Taylor filed the present motion alleging that in August
2015, he first became aware of a plea offer made by the State
to his counsel shortly before trial in which the State
offered to resolve the case with Taylor serving a
thirteen-year prison sentence on count one, to run
concurrently with his Alachua County prison sentence, and
serving two years in prison on count two, consecutively to
his prison sentence from Alachua County. Taylor averred that
his counsel never informed him about this plea offer "at
any time before, during, or after trial."
postconviction court ordered the State to respond to
Taylor's motion, which it did. The State asserted that
Taylor's motion was untimely under rule 3.850 because it
was filed more than two years after his judgment and sentence
became final and Taylor could not show under the rule
3.850(b)(1) newly discovered fact exception to this two-year
filing requirement that he could not have discovered the
aforementioned plea offer by the exercise of due diligence.
In denying Taylor's motion, the court agreed with the
State that Taylor "was less than diligent in his
failure to convey a favorable plea offer to a defendant in a
criminal case can constitute ineffective assistance of
counsel. Clark v. State, 236 So.3d 481, 483 (Fla.
4th DCA 2018) (citing Jacques v. State, 193 So.3d
1065, 1066 (Fla. 4th DCA 2016)). To adequately plead this
claim, a defendant must allege "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).
Taylor's rule 3.850 motion was facially insufficient
under Alcorn because he failed to allege that the
prosecutor would not have withdrawn the plea offer. Under
these circumstances, Taylor must be given at least one
opportunity to correct the deficiency in his motion, unless
it is apparent that the defect cannot be corrected.
See Fla. R. Crim. P. 3.850(f); Lamb v.
State, 202 So.3d 118, 120 (Fla. 5th DCA 2016) (citing
Luckey v. State, 979 So.2d 353, 355 (Fla. 5th DCA
2008)). Because Taylor had not previously sought or been
given leave to amend his rule 3.850 motion, and because the
pleading deficiency in his motion is likely correctable, he
should be given the chance to do so. Accordingly, we reverse
the summary denial and remand with directions that the
postconviction court provide Taylor with sixty days to amend
his motion, if, in good faith, he can amend it.
and REMANDED, with directions.
C.J., and ...