RISH v. STATE (2020)

Arthur M. Rish appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We previously remanded this case to allow Rish to amend his fourth ground for relief. Rish v. State, 268 So. 3d 233, 235 (Fla. 5th DCA 2019). Rish's amended motion asserts the State had offered him a seven-year sentence without habitual felony offender (“HFO”) sanctions, but his attorney directed him to reject it because the State had a “very weak” case. He contends this offer was available until June 28, 2018, when he chose to enter an open plea to the bench. He further alleges he did not know he could face HFO sanctions until he rejected the State's seven-year offer, and his lawyer never explained this possibility to him. Rish suggests that if he knew about the HFO sanctions, he would have accepted the offer. Instead, the trial court sentenced him to thirty years in prison.

In summarily denying Rish's fourth ground, the trial court attached the arrest affidavit, the State's notice of intent to pursue HFO sanctions, dated June 28, 2018, and partial transcripts from the plea and sentencing hearings. These records do not conclusively refute Rish's fourth ground for relief. See Armstrong v. State, 148 So. 3d 124, 126 (Fla. 2d DCA 2014) (“In the context of ineffective assistance resulting in the rejection of a plea offer, ‘[p]rejudice ․ is determined based upon a consideration of the circumstances as viewed at the time of the offer and what would have been done with proper and adequate advice.’ ” (quoting Alcorn v. State, 121 So. 3d 419, 432 (Fla. 2013))). For example, the records do not illustrate that Rish knew about HFO sanctions before the day he entered his open plea, or that he discussed the impact of those sanctions with his attorney before he rejected the State's seven-year plea offer. Contrary to the trial court's order, the records do not illustrate that the State's seven-year offer related to all pending counts except the one eligible for HFO sanctions. Furthermore, the records do not rebut Rish's sworn statement that his lawyer directed him to reject the seven-year offer due to the “very weak” nature of the State's case.

Accordingly, we reverse and remand for the trial court to either provide attachments that conclusively refute this claim, or for an evidentiary hearing.

REVERSED and REMANDED.

PER CURIAM.

WALLIS, SASSO and TRAVER, JJ., concur.