Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-798 _____________________________ RICKY L. MILLS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Walton County. Kelvin C. Wells, Judge. December 31, 2020 PER CURIAM. Ricky Mills appeals the summary denial of his postconviction motion brought under Florida Rule of Criminal Procedure 3.850. We affirm in part, and reverse in part. Pursuant to a negotiated plea, Mills was convicted of possession of a firearm or ammunition by a convicted felon and sentenced to four years’ imprisonment. Mills did not seek a direct appeal of the judgment and sentence. In July 2019, Mills filed the instant rule 3.850 motion alleging two claims of ineffective assistance of counsel. Mills’ second claim is without merit and we affirm its denial without comment. In the first claim, he alleged that during discussion of the state’s initial plea offer—an offer of 36 months—his counsel failed to advise him that the charge could be supported by mere possession of ammunition and failed to tell him the maximum punishment was 15 years’ imprisonment. He rejected that offer and later accepted an offer of 48 months. In February 2020, the lower court summarily denied the motion. It found a lack of prejudice because Mills’ own allegations “refute any attempt to establish that the state would not have withdrawn the thirty-six month plea offer.” This appeal followed. To prevail on a claim of ineffective assistance of counsel, a defendant must establish that counsel’s performance was 1) deficient and 2) prejudicial; if one prong fails, it is unnecessary to consider the remaining prong. State v. Barnes, 24 So. 3d 1244, 1248 (Fla. 1st DCA 2009). To establish deficiency, an appellant must show that counsel’s performance was unreasonable under “prevailing professional norms.” Id. To establish prejudice, an appellant must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. The instant claim is not conclusively refuted by the record on appeal. See Floyd v. State, 808 So. 2d 175, 182 (Fla. 2002) (“Under rule 3.850, a postconviction defendant is entitled to an evidentiary hearing unless the motion and record conclusively show that the defendant is entitled to no relief.” (citations omitted)). Mills asserted that his counsel conveyed to him a 36- month plea offer; during their discussion of that offer, Mills told his counsel he would not accept it because it would require him to plead guilty to possessing two firearms, when he actually only possessed ammunition. Mills stated that his counsel failed to tell him the charge could, in fact, be supported by the mere possession of ammunition—without any possession of a firearm; and his counsel failed to tell him the statutory maximum for the offense was 15 years and that the state’s 36-month plea offer was contingent upon his expeditious acceptance. If true, these failures constituted deficient performance. See Pennington v. State, 34 So. 3d 151, 156 (Fla. 1st DCA 2010) (“Our precedent requires attorneys to inform their clients of the maximum sentences they may face when advising them as to whether to reject a plea offer.”). 2 To establish prejudice for this type of claim, a defendant must allege and prove a reasonable probability that 1) he would have accepted the offer with correct advice, 2) the state would not have withdrawn the offer, 3) the court would have accepted the offer, and 4) the sentence would have been less severe. See Alcorn v. State, 121 So. 3d 419, 430 (Fla. 2013). To support his assertion of prejudice, Mills alleged: As stated above, absent Mr. Cobb’s failures to advise, Mr. Mills swears under oath that he would have accepted the state’s 36 month offer, before the prosecutor would have rescinded it due to Mr. Mills uninformed rejection; this court would have accepted the 36 month plea agreement where Mr. Mills scoresheet reflects any non-state prison sanction; and lastly, the 36 month offer is less severe than the 48 month prison sentence Mr. Mills ultimately received. Although the above allegation is not a verbatim quote from Alcorn, it substantially meets the four-part pleading requirement. See Ogden v. State, 273 So. 3d 162, 163 (Fla. 1st DCA 2019). The lower court found that Mills’ motion refuted the second Alcorn prong, i.e., that the state would not have withdrawn the offer. In this regard, the court cited to Mills’ acknowledgment that the state’s offer was “contingent upon his expeditious acceptance” and “would be withdrawn if it was not timely accepted.” This “acknowledgment” does not conclusively resolve the claim as required by Florida Rule of Criminal Procedure 3.850(f)(5). Whether the state would have withdrawn the offer is a factual issue not resolved by the instant record on appeal. Accordingly, the order on review is affirmed as to claim 2, but reversed and remanded as to claim 1, for the lower court to either attach portions of the record that conclusively refute the claim or hold an evidentiary hearing. AFFIRMED in part, REVERSED in part, and REMANDED with instructions. MAKAR, OSTERHAUS, and WINOKUR, JJ., concur. 3 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Ricky L. Mills, pro se, Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee. 4