Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JEAN EDDY JEAN BAPTISTE, ) ) Appellant, ) ) v. ) Case No. 2D18-3750 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________) Opinion filed February 5, 2020. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Collier County; Ramiro Mañalich, Judge. Scott W. Sakin of Scott W. Sakin, P.A., Weston, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee. CASANUEVA, Judge. Jean Baptiste timely appeals an order summarily denying his motion for postconviction relief, amended motion for postconviction relief, and second amended motion for postconviction relief, alleging eighteen grounds for relief in three criminal cases under Florida Rule of Criminal Procedure 3.850. To the extent that the order summarily denies relief on ground fifteen, we reverse and remand for the postconviction court to dismiss that ground with leave to amend within sixty days. We affirm the summary denial of the remaining grounds without discussion. "When reviewing the summary denial of a motion for postconviction relief, this court applies de novo review and 'must accept the movant's factual allegations as true to the extent that they are not refuted by the record.' " Martin v. State, 205 So. 3d 811, 812 (Fla. 2d DCA 2016) (quoting Jennings v. State, 123 So. 3d 1101, 1121 (Fla. 2013)). To plead a facially sufficient claim for relief for ineffective assistance of trial counsel, a defendant must plead sufficient facts to establish that his trial counsel's performance was deficient and that he was prejudiced thereby. Id. (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). "[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient." Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000); see also Fla. R. Crim. P. 3.850(f). In ground fifteen, Mr. Baptiste alleged that his trial counsel was ineffective for misinforming him about the terms of the State's plea offer for a total sentence of forty years' prison with a fifteen-year mandatory minimum sentence. He claimed that counsel told him that the offer included a forty-year mandatory minimum sentence instead of a fifteen-year mandatory minimum sentence. He asserted that had counsel correctly conveyed the offer, he would have accepted it. Following a jury trial, Mr. Baptiste was convicted of aggravated battery with a deadly weapon, two counts of burglary with an assault or battery, burglary of an occupied dwelling, and two counts of battery on a -2- person over sixty-five and sentenced to a total sentence of life imprisonment. The postconviction court summarily denied relief on ground fifteen, finding that the record conclusively refuted that Mr. Baptiste could establish the requisite prejudice for relief on the claim. The court observed that to establish prejudice based upon counsel's alleged deficient performance in misadvising a defendant with respect to the defendant's decision to reject a plea offer, the following factors must be met: [T]he defendant must allege and prove a reasonable probability, defined as a probability sufficient to undermine confidence in the outcome, that (1) he or she would have accepted the offer had counsel advised the defendant 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, 149-50 (2012)). The court found that elements 1 and 4 of Alcorn were satisfied by Mr. Baptiste's pleading. In determining that the record conclusively refuted element 2, the court observed that at the beginning of trial, the State indicated that its plea offer had been rejected by Mr. Baptiste at the pretrial hearing and that there was no current offer by the State. The State had made the offer at the early stages of the case when it had a different view of the case. After speaking with the victims, the State determined that its forty-year offer was not appropriate given the nature of the offenses and Mr. Baptiste's history. The postconviction court further noted that Mr. Baptiste failed to allege that the trial court would have accepted the offer. Finding that the record established that the State would have withdrawn the offer, the postconviction court concluded that the record conclusively refuted the claim. -3- The postconviction court's finding that the record conclusively established that the State would have withdrawn the plea offer, thereby refuting the existence of the requisite prejudice, is incorrect. Its consideration of the State's after-the-fact withdrawal of the offer on the morning of trial had no bearing on whether the State would have withdrawn its offer before Mr. Baptiste rejected it at the pretrial hearing. "Prejudice . . . 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." Id. at 432; see also Armstrong v. State, 148 So. 3d 124, 126 (Fla. 2d DCA 2014) (quoting Alcorn for the foregoing proposition). The record does not establish that the State had or would have withdrawn its offer before Mr. Baptiste rejected it at the pretrial conference. In addition, it does not demonstrate that Mr. Baptiste could not meet the third prong of the Alcorn prejudice test regarding the trial court's acceptance of the plea. Notably, at the beginning of trial the court asked, "Let me ask one last time, is there any prospect for a resolution in this case short of trial . . . ." The record does not establish that the trial court would not have accepted the State's plea offer had Mr. Baptiste agreed to it when it was open. To the extent that Mr. Baptiste's failure to allege that the trial court would have accepted the plea makes his claim facially insufficient, he should be given a chance to amend his motion to state a facially sufficient claim. See Fla. R. Crim. P. 3.850(f)(2). Accordingly, we reverse the summary denial of ground fifteen and direct the postconviction court to dismiss the claim on remand without prejudice to Mr. Baptiste amending it within sixty days to correct the pleading deficiency with respect to the requisite prejudice. If Mr. Baptiste alleges a facially sufficient claim, the -4- postconviction court may again deny relief if it attaches that portion of the files and records that conclusively refute the claim. Otherwise, it must hold an evidentiary hearing on the claim. See Fla. R. Crim. P. 3.850(f). Affirmed in part, reversed in part, and remanded. LaROSE and ROTHSTEIN-YOUAKIM, JJ., Concur. -5-