final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Ilona Maxine Holmes, Judge; L.T. Case Nos.
04-020572CF10A, 05-001162CF10A, 05-001163CF10A and
Robinson, Miami, pro se.
Moody, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for
Robinson appeals the circuit court's order summarily
denying his Florida Rule of Criminal Procedure 3.850 motion
as untimely and successive. We affirm in part, reverse in
part, and remand for further proceedings.
State charged Robinson in four separate felony prosecutions.
The court consolidated the four cases, and Robinson entered
no contest pleas in each. In 2006, after sentencing, Robinson
appealed the four judgments and sentences. But Robinson also
moved in 2006 to withdraw his plea in all four cases,
pursuant to Florida Rule of Criminal Procedure
3.170(l). The motion to withdraw his plea remained
pending in the circuit court until it was denied in 2011.
Robinson appealed the denial of his Rule 3.170(l)
motion, and we affirmed in 2013. Robinson v. State
(Robinson III), 123 So.3d 578, 578 (Fla. 4th DCA
Robinson's Rule 3.170(l) motion was pending in
the circuit court, this Court dismissed the four Robinson
I direct appeals by unpublished orders for various
procedural reasons. In a separate appeal, this Court affirmed
the denial of an earlier Rule 3.850 motion Robinson filed-
involving the same four convictions and sentences-while the
Rule 3.170(l) motion was pending. Robinson v.
State (Robinson II), 44 So.3d 136, 137 (Fla.
4th DCA 2010). But with Robinson's Rule 3.170(l)
motion still pending, his convictions and sentences did not
become final until 2013 when this Court's mandate issued
in Robinson III. This Court therefore lacked
jurisdiction to consider the Robinson I and the
Robinson II appeals. See Wilson v. State,
128 So.3d 898, 899 (Fla. 4th DCA 2013) ("A timely rule
3.170(l) motion to withdraw plea after sentencing
defers rendition of the final order." (citing Fla. R.
App. P. 9.020(i)(1))).
to the present appeal, Robinson filed a Rule 3.850 motion in
March 2015. The Rule 3.850 motion, as timely amended,
included nine claims. The State responded, addressing many of
the nine claims. The court denied the motion as untimely and
State now concedes that it "appears under this
Court's precedents and the Florida Rules of Appellate
Procedure as though the time to file a timely motion for
postconviction relief did not commence until December 13,
2013, when [the] mandate issued in" Robinson
III. We accept the State's concession that
Robinson's Rule 3.850 motion was timely.
that does not end our inquiry. We may affirm the denial of a
Rule 3.850 motion for reasons other than those stated by the
circuit court, and we do so, in part, here. See Montero
v. State, 996 So.2d 888, 890 (Fla. 4th DCA 2008). But,
based on the State's response to Robinson's motion,
we reverse the trial court's denial of three of
Robinson's claims: claims six, seven, and nine.
claim six, Robinson alleged his counsel rendered ineffective
assistance by failing to relay a plea offer. The State argued
the claim should be denied as untimely, and the court agreed.
As explained above, that was error. To prevail on this claim,
Robinson was required to allege and prove "that (1) he .
. . would have accepted the offer had counsel advised [him]
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) (citing
Missouri v. Frye, 566 U.S. 134, 147-48 (2012)).
Robinson failed to allege that the State would not have
withdrawn the offer and that the court would have accepted
the offer. So the motion was insufficient. But we reverse the
court's order to allow Robinson the opportunity to amend
his motion to address these deficiencies if he can do so in
good faith. See Mitchell v. State, 165 So.3d 748,
749 (Fla. 4th DCA 2015) (citations omitted).
claim seven, Robinson argued he received ineffective
assistance of counsel when his counsel failed to object or
correct "affirmative misadvice" by the court about
the statutory maximum and mandatory minimum sentences he
faced. The State's written response failed to adequately
address this claim beyond the issue of timeliness. Because
the motion was timely and the State failed to refute this
claim, we direct the court to consider this claim on remand.
in amended claim nine, Robinson challenged the legality of
his 20-year mandatory minimum sentence for discharge of a
firearm during a burglary in one of the four cases against
him. The court sentenced Robinson to the mandatory minimum
for discharge of a firearm, but he claimed that he was not
charged with discharge of a firearm. He also alleged he
received ineffective assistance of counsel for counsel's
failure to raise this sentencing issue. The State failed to
address this claim in ...