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 RON T. RUBINO, ) ) Appellant, ) ) v. ) Case No. 2D19-2514 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed August 12, 2020. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County; William D. Sites, Judge. Ron T. Rubino, pro se. SLEET, Judge. Ron Rubino challenges the postconviction court's order summarily denying his Florida Rule of Criminal Procedure 3.850 motion. In his motion, Rubino alleged four claims of ineffective assistance of trial counsel in conjunction with his conviction after jury trial for burglary of a dwelling and theft. We reverse and remand for an evidentiary hearing on one of Rubino's claims. We affirm in all other respects. In claim two of his rule 3.850 motion, Rubino alleged that counsel was ineffective for misadvising him to reject a plea offer extended by the State. Specifically, he maintained that the State offered a five-year prison sentence in exchange for his pleading guilty to attempted burglary but that counsel advised him to reject the offer based on her incorrect understanding of the law. According to Rubino, counsel told him that based on the evidence—which established that Rubino entered a dilapidated home—the most the State could prove was burglary of a structure, a third-degree felony punishable by five years in prison. Rubino claimed that counsel advised him that because five years was the most he could be sentenced to upon conviction, he should reject the State's five-year plea offer and proceed to trial with the chance of being acquitted. Rubino acknowledged that counsel told him that he qualified for prison releasee reoffender (PRR) sentencing on either conviction but maintained that he rejected the State's offer solely based on counsel's advice. He also alleged that had counsel not misinformed him of the law on burglary, he would have accepted the State's five-year offer rather than go to trial and expose himself to a fifteen-year minimum mandatory PRR sentence.1 He further alleged that there was no evidence to suggest that the State would have withdrawn the offer or that the trial court would not have approved the offer.2 In support of his claim that counsel misadvised him of the law, Rubino's motion alleged that at trial, in moving for judgment of acquittal, defense counsel argued 1See § 775.082(9)(a)(3)(b), Fla. Stat. (2016). 2See Alcorn v. State, 121 So. 3d 419, 422 (Fla. 2013) (holding that in order to demonstrate prejudice pursuant to Strickland v. Washington, 466 U.S. 668 (1984), on an ineffectiveness claim based on counsel's misadvising a defendant to reject a plea offer "the defendant must demonstrate a reasonable probability . . . 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"). -2- that the State's evidence did not establish burglary of a dwelling because the building he entered was uninhabitable, citing this court's opinion in Munoz v. State, 937 So. 2d 686 (Fla. 2d DCA 2006). However, the trial court denied the motion and informed counsel that Munoz had been disapproved by the Florida Supreme Court in Young v. State, 141 So. 3d 161 (Fla. 2013), wherein the supreme court held that if a building was constructed for the purpose of being a dwelling, the building retained its status as a dwelling even if it was uninhabitable at the time of the break-in. See also Perkins v. State, 682 So. 2d 1083, 1085 (Fla. 1996) (holding that the term "dwelling" referred to "buildings or conveyances of any kind that are designed for human habitation" and that "an empty house in a neighborhood is extended the same protection as one presently occupied").3 "[A] defendant is entitled to an evidentiary hearing on a rule 3.850 motion unless (1) the motion, files, and records in the case conclusively show that the movant is entitled to no relief[] or (2) the motion or particular claim is legally insufficient." Franqui v. State, 59 So. 3d 82, 95 (Fla. 2011). Here, the postconviction court concluded that the record conclusively refuted this claim and summarily denied it. In doing so, the court relied on the transcript of Rubino's sentencing hearing, wherein after the trial court pronounced Rubino's fifteen-year PRR sentence, Rubino confronted his counsel and the following exchange occurred: [RUBINO]: I don't understand that. I'm just, I'm lost for words. I mean I -- you know I gave my lawyer – we discussed that she said that there was a case law stating 3Our limited record does not make clear the exact condition of the building entered by Rubino, but his defense at trial was that he was adversely possessing the property and had made improvements to it, suggesting that it was inhabitable to some degree or, at the very least, had the potential of becoming habitable with some renovation. As such, the character of the building was not so substantially modified as to change its purpose as a house for lodging. See Young, 141 So. 3d at 172. -3- that it was inhabitable and it would not be considered a dwelling. That we were forced to go to a trial and that the most it could be is Burglary of a structure and now I'm hit with a PRR 15 years Burglary of a Dwelling because I was told by her that – that, you know that – that it would be considered a structure and we had no choice but to go to trial. Ain't that right Ms. Wright? [DEFENSE COUNSEL]: No, that is incorrect. THE COURT: Okay, we're not gonna to get into – [RUBINO]: You did not tell me that? THE COURT: -- we're not gonna to get into back and forth between attorney and client at this point. [DEFENSE COUNSEL]: I would be happy to repeat what I did tell you, but that's not what I told you. THE COURT: That's privileged and I'm not gonna get into that now. (Emphasis added.) We cannot agree with the postconviction court that these statements by counsel to Rubino conclusively refute Rubino's claim that counsel misadvised him regarding what the State's evidence could prove and whether he should reject the State's plea offer. First, the statements were vague enough that it is not clear to which part of Rubino's accusation counsel was responding. The postconviction court assumed that counsel was responding to Rubino's claim that counsel "said that there was a case law stating that it was inhabitable and it would not be considered a dwelling." But counsel's responses—"[t]hat is incorrect" and "that's not what I told you"—could just as logically have been addressing Rubino's assertions that she told him "we were forced to go to trial" and "we had no choice but to go to trial." A denial by counsel that she told Rubino that his only choice was to go to trial would not conclusively refute his claim that she advised him not to take the plea offer and instead -4- take his chances at trial because, based on the State's evidence, the most he would serve would be five years anyway. Convincing a client to reject a plea offer based on a misunderstanding of the law is not the same as telling a client that he has no choice but to go to trial. As such, this portion of the record relied on by the postconviction court does not conclusively refute Rubino's claim. Furthermore, counsel's statements to Rubino during sentencing were not made under oath and therefore could not be considered evidence of what she did or did not advise Rubino with regard to accepting or rejecting the State's plea offer. See Richardson v. State, 182 So. 3d 918, 923 (Fla. 1st DCA 2016) ("[T]he unsworn statements of counsel do not constitute evidence." (alteration in original) (quoting State v. Walters, 12 So. 3d 298, 303 (Fla. 3d DCA 2009))). Counsel also acknowledged at sentencing that she had discussed the issue with Rubino by stating, "I would be happy to repeat what I told you." Without an evidentiary hearing, during which counsel can be put under oath and her credibility can be weighed, there is no way to know exactly what she told Rubino. We also note that although our record does not include a transcript of defense counsel's argument for judgment of acquittal at trial, we must accept the allegations in Rubino's motion as true. See Franqui, 59 So. 3d at 95 ("When reviewing a court's summary denial of a rule 3.850 motion or claim, the court must accept the movant's factual allegations as true to the extent they are not refuted by the record."). As such, for purposes of our review, we must accept that counsel misunderstood what constitutes a dwelling for purposes of a burglary of a dwelling conviction and believed that Rubino could not be convicted of burglary of a dwelling until the trial court corrected her. -5- We conclude that claim two of Rubino's rule 3.850 motion is not conclusively refuted by the portions of the transcript relied on by the postconviction court. Accordingly, we reverse the summary denial of that claim and remand for an evidentiary hearing on that claim alone. We affirm the postconviction court's order in all other respects. Affirmed in part, reversed in part, and remanded. KELLY and BLACK, JJ., Concur. -6-