Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT CONSTANTINE KALOGIANIS, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-3770 April 20, 2022 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pasco County; Kimberly Campbell, Judge. Constantine Kalogianis, pro se. SLEET, Judge. Constantine Kalogianis appeals from the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because Kalogianis' claim is not conclusively refuted by the record, we reverse and remand. Kalogianis pleaded guilty to one count of scheme to defraud and eight counts of forgery. The trial court sentenced him to nine years' imprisonment followed by nine years' probation for scheme to defraud, concurrent with five years' imprisonment for each of the forgery counts. Kalogianis filed the instant timely motion for postconviction relief alleging ineffective assistance of counsel based on his attorney's failure to convey a plea offer. He alleged that prior to trial, he retained counsel for the "sole purpose" of securing a plea deal. His attorney tried to obtain a probationary sentence but was unable to do so, and Kalogianis ultimately proceeded pro se. During trial, Kalogianis requested the assistance of counsel, and an assistant public defender was appointed. Then, with the assistance of the public defender, Kalogianis entered open pleas. During this time, the public defender allegedly informed Kalogianis that the State had previously presented a three-year plea deal to his former attorney, which was rejected. In his motion, Kalogianis alleged that his former attorney never presented the offer to him. When a rule 3.850 motion is summarily denied, we "must accept the movant's factual allegations as true to the extent that 2 they are not refuted by the record." Jennings v. State, 123 So. 3d 1101, 1121 (Fla. 2013). "We may only affirm a postconviction court's summary denial if the record conclusively shows that the appellant is entitled to no relief." Tualla v. State, 251 So. 3d 337, 338 (Fla. 2d DCA 2018) (quoting Wesby v. State, 230 So. 3d 939, 941 (Fla. 2d DCA 2017)). Failure of counsel to convey a plea offer can constitute ineffective assistance of trial counsel. See Jacques v. State, 193 So. 3d 1065, 1065-66 (Fla. 4th DCA 2016). [T]o establish prejudice, the [movant] must allege and prove a reasonable probability . . . that (1) he or she would have accepted the offer had counsel advised the [movant] 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); see also Forbes v. State, 269 So. 3d 677, 680 (Fla. 2d DCA 2019). Here, the postconviction court correctly concluded that Kalogianis' claim was facially sufficient as it alleged that he would have accepted the offer, that the prosecutor would not have withdrawn the offer, that the trial court would have accepted the 3 offer, and that a three-year sentence would have been less severe than the sentence he received. However, the postconviction court found the claim to be conclusively refuted by Kalogianis' allegations that he retained counsel "to secure a probationary sentence" and that they parted ways after the attorney's "efforts were unsuccessful in securing a probationary sentence." The postconviction court reasoned that "even if the attorney had conveyed the State's 3-year offer, Defendant would not have accepted it because at the time the offer would have been conveyed, he was seeking a probationary sentence only." Contrary to the postconviction court's characterization of the claim, Kalogianis did not allege that he retained counsel only to secure a probationary sentence; rather, he alleged that "[t]he sole purpose of retaining [the attorney] was to secure a plea deal in this matter." He did not allege that he only sought or would have only accepted a probationary sentence but instead alleged that he retained counsel to obtain a plea deal and that he "would have accepted a 3 year DOC sentence." Because Kalogianis' claim is not conclusively refuted by the record, we reverse and remand for the postconviction court to either 4 attach those portions of the record that conclusively refute the claim or conduct an evidentiary hearing. See Fla. R. Crim. P. 3.850(f)(5), (8). Reversed and remanded. SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur. Opinion subject to revision prior to official publication. 5