final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Bruce
Emery Gordon, pro se, Appellant.
Moody, Attorney General, Amanda D. Stokes, Assistant Attorney
General, Tallahassee, for Appellee.
Gordan seeks review of the order denying his motion for
postconviction relief. We affirm for the reasons set forth
below. We reject all other arguments not discussed.
2015, a jury found Appellant guilty of aggravated assault
with a deadly weapon, a lesser-included charge of attempted
murder in the second degree. The criminal conduct involved
shooting into a car in which the victim was sitting.
Appellant asserted the victim was not in the car; the victim
testified otherwise. Appellant was sentenced to twenty
years' imprisonment with twenty-year mandatory-minimum
term for the aggravated assault with a deadly weapon, to be
served concurrently under the State's
"10-20-Life" statute as it then applied. This Court
affirmed his conviction and sentence per curiam. Gordon
v. State, 194 So.3d 1023 (Fla. 1st DCA 2016) (Table).
filed a timely motion for postconviction relief pursuant to
Florida Rule of Criminal Procedure 3.850 and argued that
counsel was ineffective for misadvising him to reject a
favorable plea offer. After receiving a response from the
State, the lower court summarily denied the motion.
appeal, Appellant argues that his counsel was ineffective for
misadvising him about his likelihood of acquittal, which
resulted in Appellant's refusal to enter into plea
negotiations with the State. Appellant discusses four
negotiations between his counsel and the State, where the
State told counsel that if Appellant made a plea offer, the
State would consider it without the mandatory minimum
provision, and that even a "single-digit" sentence
would be considered.
contends that counsel told him that he would be acquitted at
trial because he had a strong defense. Due to this advice,
Appellant argues he "rejected" the State's
offer to enter into a plea.
a plea bargain has been offered, a defendant has the right to
effective assistance of counsel in considering whether to
accept it." Lafler v. Cooper, 566 U.S. 156, 168
(2012). To establish prejudice, a defendant must allege 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withdrawn the offer, (3) the court would have accepted the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."
Alcorn v. State, 121 So.3d 419, 430 (Fla. 2013)
(citing Missouri v. Frye, 132 S.Ct. 1399 (2012)).
Court considered a similar argument to that raised by
Appellant in Carter v. State, 225 So.3d 881 (Fla.
1st DCA 2017). In Carter, the defendant alleged his
attorney misadvised him about the likelihood of his defense
succeeding at trial and due to this bad advice he refused to
consider plea negotiations involving more than 10 years in
prison or an open plea of guilty. Id. at 882. This
Court found that this claim was too speculative to merit
relief under Strickland v. Washington, 466 U.S. 668
(1984). Id. at 883. Because the State never conveyed
a plea offer, this Court concluded that the Alcorn
test could not apply, and the defendant could not establish
as in Carter, the State did not make a plea offer.
Gordon's counsel's notes indicate that counsel
relayed the State's willingness to consider an
offer. Counsel told Appellant that if he decided he was
interested, counsel would fashion an offer. But Appellant
responded that he would prefer to proceed to trial, despite
counsel's warning Appellant that the State could add a
charge of criminal mischief and, if convicted, Appellant
would face at least a ten-year prison sentence on that charge
extent the State indicated a willingness to entertain a plea,
Appellant rejected the opportunity. Thus, because there was
no actual offer made by the State, under Alcorn
Appellant cannot show he was ...