STATHAM v. STATE (2022)

Appellant challenges the lower court's denial of his motion for postconviction relief. We affirm the lower court's order on claims one through six without comment but reverse and remand on claim seven for the reasons stated below.

On January 11, 2017, a jury found Appellant guilty of burglary of a dwelling. The trial court designated him as a habitual felony offender and a prison releasee reoffender and sentenced him to twenty years in prison with a fifteen-year minimum mandatory term.

Appellant timely filed his motion for postconviction relief, raising seven claims. In claim seven, Appellant argued that trial counsel failed to inform him of the possibility of being sentenced as a habitual felony offender and a prison releasee reoffender and of the potential penalties that these enhancements carried. Just two days before trial, counsel told Appellant that the State had filed a notice of seeking habitual felony offender designation and a prison releasee reoffender enhancement and that there was no plea agreement. At jury selection, Appellant stated on the record that his counsel had not told him until that day that he was facing these enhancements. The State noted that a plea offer of seventy-two months in prison had been rejected by Appellant. After this discussion, Appellant chose to proceed to trial. Appellant claimed that he never would have gone to trial had he known that he was subject to these enhancements.

The lower court denied the claim on the merits, finding that Appellant affirmed that he wanted to proceed to trial after hearing about these enhancements.

An attorney's failure to inform a defendant of sentencing enhancements when discussing a plea offer constitutes deficient performance. See Ogden v. State, 273 So. 3d 162, 163 (Fla. 1st DCA 2019) (holding counsel's failure to advise defendant he faced a mandatory life sentence as a PRR when discussing plea offer constituted deficient performance). The record before us indicates that Appellant's counsel did not make him aware of his eligibility for these enhancements until after he rejected the State's plea offer. However, Appellant failed to expressly allege that he would have accepted the State's plea offer had he known he would be subject to these enhancements, that the State would not have withdrawn the offer, and that the trial court would have accepted the offer—as required by Alcorn v. State, 121 So. 3d 419, 430 (Fla. 2013) (holding that to establish prejudice for misadvice regarding a plea offer, 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.”). Because the claim is facially insufficient and not refuted by the record, the lower court should have given Appellant an opportunity to correct these insufficiencies. See Spera v. State, 971 So. 2d 754, 758-59 (Fla. 2007) (holding that a defendant should be given an opportunity to amend a timely but insufficient rule 3.850 motion if he can do so in good faith).

Thus, we reverse the order on appeal as to claim seven with instructions that the trial court enter a non-final order striking claim seven and allowing Appellant sixty days to file a facially sufficient rule 3.850 motion if he can do so in good faith.

Affirmed in part, Reversed in part, and Remanded with directions.

Per Curiam.

B.L. Thomas, Nordby, and Tanenbaum, JJ., concur.