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TABLEOFCONTENTS
TABLE OF CONTENTS ii
TABLE OF CITATIONS iii
STATEMENT OF THE CASE AND FACTS 1
SUMMARY OF THE ARGUMENT 6
ARGUMENT 7
THE DECISION OF THE FIRST DISTRICT COURT OFAPPEAL IN THIS CASE EXPRESSLY AND DIRECTLYCONFLICTS WITH THE DECISION OF THIS COURT INALCORN V. STATE, 121 SO. 3D 419 (FLA. 2013)
CONCLUSION 10
DESIGNATION OF EMAIL ADDRESS 11
CERTIFICATE OF SERVICE 11
CERTIFICATE OF FONT COMPLIANCE 12
11
TABLE OF CITATIONS
Cases
Alcorn v. State, 121 So.3d 419 (Fla. 2013) passim
Cottle v. State, 733 So.2d 963 (Fla. 1999) 7
Cruz-Betanzos v. State, 169 So. 3d 1236 (Fla. 1st DCA 2015) 5, 8
Lewis v. State, 751 So.2d 715 (Fla. 5th DCA 2000) 7
Morgan v. State, 991 So.2d 835 (Fla. 2008) 7
Munoz v. S. Miami Hosp., Inc., 764 So. 2d 854 (Fla. 3d DCA 2000) 9
Revell v. State, 989 So.2d 751 (Fla. 2d DCA 2008) 7
Strickland v. Washington, 466 U.S. 668 (1984) 4, 7
Rules
Florida Rule of Appellate Procedure 2.516 11
Florida Rule of Appellate Procedure 9.030 7
Florida Rule of Appellate Procedure 9.210 12
111
STATEMENT OF THE CASE AND FACTS
The relevant facts regarding the existence of a conflict with the decision of
this Court, as stated in the opinion of the First District Court of Appeal, a copy of
which is appended hereto, are as follows:
Appellant and co-defendant were charged (under the principaltheory) with making, possessing, throwing or discharging of adestructive device, which carried a mandatory minimum sentence often years' imprisonment, and with transporting a firebomb. The co-defendant went to trial first and was acquitted. After the former co-defendant was acquitted, he agreed to testify against Appellant. Rightbefore Appellant's trial began, Appellant rejected a favorable pleaoffer that would have adjudicated him guilty of a felony, required himto write a letter of apology to the victim, and would have placed himon two years of community control followed by three years ofprobation. Appellant proceeded to trial and was convicted of bothcrimes.
In Appellant's motion for post-conviction relief, he argued thathis trial counsel was ineffective for failing to properly advise him toaccept the plea offer and about all of the pertinent matters, such as theprincipal theory, relevant to his case. He further argued that trialcounsel's failure to advise him about all of the pertinent mattersdenied him the ability to make an informed decision about whether ornot he should accept the plea offer. The post-conviction court grantedAppellant an evidentiary hearing and made extensive findings.
* * *
During the evidentiary hearing on Appellant's post-convictionmotion, Appellant's trial counsel testified that she met with Appellantmultiple times and went over the evidence against him including: thediscovery she received from the State; Appellant's entire interrogationwith the law enforcement; the evidence from the former co-defendant's trial; the applicable case law including the principaltheory; and the former co-defendant's deposition. Trial counseltestified that she gave Appellant a copy of his interrogation and they
discussed Appellant's meriminating statements. Trial counsel alsotestified that she believed Appellant understood the principal theorybased upon his testimony at trial, which was he did not known aboutthe former co-defendant's intentions nor that there was a firebomb inthe car. The post-conviction court found trial counsel's testimonymore credible than Appellant's testimony with regards to the legaladvice that she provided to Appellant and found Appellant understoodthe principal theory based upon his trial testimony. Trial counselaffirmatively testified that she never advised Appellant to reject theplea offer and had advised Appellant that it was a "good plea."Appellant testified that trial counsel told him to reject the plea offer,but the post-conviction court did not find Appellant's testimonycredible. Trial counsel testified that she left the decision up toAppellant about whether or not to accept the plea offer.
*2 Because the evidence does not show that trial counselactually advised Appellant to accept the plea, the post-convictioncourt had to determine whether or not trial counsel provided Appellantwith enough information to allow him to make an informed decisionabout whether or not he should accept the plea. The inquiry mustfocus on what trial counsel conveyed to Appellant about his chance ofan acquittal and not on what she believed. Trial counsel testified thatshe told Appellant that it was "possible for him to win" and he had a"chance," but she also said she would not guarantee success. There isno credible record evidence, as suggested by the dissent, that trialcounsel conveyed or displayed her confidence of obtaining anacquittal to Appellant.
In her assessment of Appellant's chance of an acquittal at trial,trial counsel testified that Appellant's case and the former co-defendant's case possessed the same operative facts with twoexceptions. Those two exceptions are the testimony of the former co-defendant and Appellant's own inculpatory statements that he wastalked into going along with the former co-defendant's plan to throwthe firebomb at the victim's house and that he drove the former co-defendant to the house. Appellant admitted that trial counsel wentover his statements to law enforcement and Appellant thought thosestatements could be harmful if that interrogation was played for thejury. Appellant also admitted that trial counsel went over thedeposition of the former co-defendant with him. Appellant knew thatthe former co- defendant was going to testify against him and identifyhim as the person who threw the firebomb. Appellant admitted that
trial counsel told him that his case would come down to credibility.The court found trial counsel's assessment that it was "possible" forAppellant to be acquitted was not unreasonable based upon herperspective at the time Appellant rejected the plea offer. It also foundtrial counsel was not ineffective.
* * *
[3] The dissent is correct in stating that trial counsel had a dutyto correctly advise Appellant about his chance at trial. There isnothing in the record, other than Appellant's vacillating testimonyduring the post-conviction relief hearing that was found not to becredible, that shows trial counsel's assessment of a chance of or apossibility of an acquittal was inaccurate. Actually, there iscompetent, substantial evidence to support the post-conviction court'sfinding that trial counsel's assessment that it was "possible" forAppellant to be acquitted at trial was not unreasonable. Trial counselinformed Appellant that his case came down to credibility. Trialcounsel was going to do her best to discredit the former co- defendantas he was high on pills and inebriated at the time of the incident.During the former co-defendant's deposition, he admitted that heinitially lied to law enforcement about his presence at the scene of thecrime and only told them that Appellant threw the firebomb after lawenforcement confronted him with evidence that he was present.Additionally, the former co-defendant did not actually see Appellantthrow the firebomb. Appellant told trial counsel that he had beencoerced into giving law enforcement the statements that he providedduring his interview, and she found him credible. If the jury had foundAppellant's testimony at trial more credible than the other evidencepresented, this case would not be before this Court. Therefore, thedissent's assertion that Appellant had no possibility of an acquittal isinaccurate. There is a distinct difference between the words "possible"or "chance" and "reasonable chance" as it is "possible" and one doeshave a "chance" to win the lottery, but one does not have a"reasonable possibility" to win the lottery. Trial counsel informedAppellant about the things that must happen in order for Appellant toobtain an acquittal. Therefore, trial counsel's advice was accurate.
*3 Trial counsel's conveyed assessment of a "possible"acquittal with the understanding that the jury would have to findAppellant's testimony at trial more credible than the other evidence,
3
along with the explanation about how the case law applied to all theevidence, provided Appellant all the information required by the lawto make an informed decision about whether or not he should acceptthe plea offer. The record reveals that Appellant was reluctant toaccept the favorable plea offer because he would become a convictedfelon by entering the plea. Trial counsel testified that Appellant toldher he did not want to be a convicted felon over "burnt grass."Appellant was also a nursing student who was close to finishing hisbachelor's degree and knew he would not be able to be a licensednurse if he was a convicted felon. Knowing his fate was sealed if thejury did not find his trial testimony more credible than the otherevidence, he still chose to take his case to trial. There is nothing in therecord, as suggested by the dissent, to suggest that trial counsel didnot make him aware of what he was facing if the jury found histestimony less credible than the other evidence other than Appellant'svacillating testimony about what he and trial counsel discussed. If thisCourt were to accept the statement that Appellant did not know whatwould happen if the jury did not believe his trial testimony, then thatwould mean Appellant did not know he was facing a minimummandatory sentence of ten years in prison. The post-conviction courtstated that trial counsel did not fail to advise Appellant of that fact,and Appellant did not raise that claim in his motion for post-conviction relief.
In retrospect, Appellant should have taken the plea, but thisCourt cannot look at the facts through the eyes of someone who didnot obtain an acquittal. This Court can only view facts as they existedat the time Appellant rejected the plea offer and chose to go to trial.Appellant was provided the facts required by law to make an informeddecision about whether or not he should have accepted the plea offer.Based upon the fact that Appellant knew his case came down to hiscredibility at trial, his former co-defendant was going to testify thatAppellant was solely responsible for the crimes, and his own priorstatements would be used against him, it is not likely that he wouldhave accepted the plea offer had trial counsel advised him assuggested by the dissent. It is more likely that Appellant would havefired his trial counsel and sought new counsel who would have soughtan acquittal rather than urge him to accept the plea.
[4] Even if the post-conviction court had found trial counselwas ineffective, Appellant cannot show prejudice. Under Strickland,Appellant had to show that trial counsel's performance was deficient
4
and he was prejudiced by her performance in order to be entitled torelief. Id. at 687. In order to show prejudice, a defendant must showthat: (1) he would have accepted the plea offer had trial counseladvised him correctly; (2) the State would not have withdrawn theplea offer; (3) the trial court would have accepted the plea offer; and(4) the conviction or sentence or both would have been less severeunder the plea offer than the defendant received under the judgmentand sentence that were actually imposed. Cruz-Betanzos v. State, 169So. 3d 1236, 1237 (Fla. 1st DCA 2015). The post-conviction courtfound Appellant's testimony that he would have accepted the pleaoffer unbelievable. The post-conviction court is the court that assessescredibility and assigns the weight of the evidence, and this Courtcannot substitute its judgment for that of the post- conviction court.See Stephens, 748 So. 2d at 1033. The dissent fails to acknowledgethat the post-conviction court made a finding of fact that Appellantwould not have accepted the plea offer, and that finding is supportedby competent and substantial evidence. The post-conviction court'sfinding is supported by its credibility finding that Appellant'stestimony was not believable that he would have accepted the pleaand trial counsel's testimony about her conversations with Appellantand his reluctance to become a convicted felon.
5
SUMMARY OF THE ARGUMENT
There is a clear-cut conflict between the decision of the First District Court
of Appeal below and this Court's decision in Alcorn v. State, 121 So.3d 419 (Fla.
2013). This Court found in Alcorn that in order to prove a defendant is prejudiced
as a result of deficient counsel during plea proceedings, a defendant is required to
satisfy four prongs: (1) he would have accepted the plea offer had trial counsel
advised him correctly; (2) the State would not have withdrawn the plea offer; (3)
the trial court would have accepted the plea offer; and (4) the conviction or
sentence or both would have ben less severe under the plea offer than the
defendant received under the judgment and sentence that were actually imposed.
The standard for satisfying these four prongs is a reasonable probability, defined as
a probability sufficient to undermine confidence in the outcome.
The First District decision below conflicts with the Alcorn findings and
analysis when it found that the Petitioner did not establish that he would have
accepted the plea offer, but for trial counsel's deficient advice that he would be
successful at trial. The Petitioner presented evidence that satisfies Alcorn's burden
of a reasonable probability. This Court should exercise its conflict jurisdiction in
this case so that disparate results in different appellate districts can be avoided.
6
ARGUMENT
THE DECISION OF THE FIRST DISTRICT COURTOF APPEAL IN THIS CASE EXPRESSLY ANDDIRECTLY CONFLICTS WITH THE DECISION OFTHIS COURT IN ALCORN V. STATE, 121 SO. 3D 419(FLA. 2013)
This Court has discretionary jurisdiction to review the decision of the First
District Court of Appeal below because that decision is expressly and directly in
conflict with a decision of this Court. Fla. R. App. P. 9.030(a)(2)(A)(iv).
The conflict between the instant decision and the decision of this Court in
Alcorn v. State, 121 So. 3d 419 (Fla. 2013), is beyond peradventure. In Alcorn, this
Court resolved a conflict about what a defendant is required to prove in order to
establish prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). The Court ultimately receded from Cottle v. State, 733
So.2d 963 (Fla. 1999) and Morgan v. State, 991 So.2d 835 (Fla. 2008) and
disapproved Lewis v. State, 751 So.2d 715 (Fla. 5th DCA 2000) and Revell v.
State, 989 So.2d 751 (Fla. 2d DCA 2008). The Court's ultimate conclusion was
that in order for a defendant to establish prejudice under Strickland after trial
counsel's deficiencies during a plea offer, they are required to show four things:
(1) he would have accepted the plea offer had trial counsel advised him correctly;
(2) the State would not have withdrawn the plea offer; (3) the trial court would
have accepted the plea offer; and (4) the conviction or sentence or both would have
7
ben less severe under the plea offer than the defendant received under the judgment
and sentence that were actually imposed. Alcorn, 121 So. 3d at 433. The Court
concluded that the analysis should start with the fourth prong, and then determine
if the defendant has proven "a reasonable probability, defined as a probability
sufficient to undermine confidence in the outcome" that the other three prongs are
met. Id. at 433.
The First District in the instant case found that the Petitioner had not
established that but for trial counsel's deficient actions during the plea process that
he would have accepted the favorable plea offer.¹ This decision directly conflicts
with the holding in Alcorn because the evidence presented at the evidentiary
hearing was sufficient to establish that the Petitioner would have accepted the plea
under the burden and standard addressed in Alcorn.
As identified by the Dissent
"The fact that Appellant, a person not trained in the law,thought he might obtain an acquittal is not dispositive, when thedeficient performance is defense counsel's failure to warn of theadverse consequences Appellant was certain to suffer should he go totrial. It is only speculation to assume Appellant would have continuedto obstinately refuse to accept such a generous plea offer, given theState's evidence, as it was defense counsel's professional obligation,as counsel, to properly advise Appellant, which would have removedall doubt as to whether Appellant would have accepted a plea offer
¹ The majority opinion cites to the case of Cruz-Betanzos v. State, 169 So. 3d 1236(Fla. 1st DCA 2015) when going through the four requirements under Alcorn.However, the Dissent acknowledges the conflict with the Court's opinion inAlcorn.
8
that no rational defendant would refuse. Cf. Munoz v. S. MiamiHosp., Inc., 764 So. 2d 854, 857 (Fla. 3d DCA 2000) (stating that "[i]tsimply flies in the face of common sense" and indulges in improperspeculation to uphold summary judgment based on physician's failureto warn other physician of potential adverse medical consequences"conveyed with due concern and gravity by professional colleagues,"even where physician, who was not warned, testified he receivedsimilar information from lay person). Here, it "flies in the face ofcommon sense" to speculate that Appellant would have chosen aconviction and ten years' imprisonment, rather than plead guilty butavoid incarceration. Appellant, like all criminal defendants, must relyon the legal advice of an attorney to "convey[] with due concern andgravity" the catastrophic consequences that will follow a recklessdecision to turn down the only viable option of a favorable and lenientplea settlement when faced with a certain conviction and lengthyincarceration. Id.
* * *
Because of defense counsel's ineffective legal advice,Appellant was denied the opportunity to make an informed choice,and the record shows that had he been properly informed, in blunt, no-uncertain terms that he was going to be convicted and would berequired to serve a ten-year prison term, he would have chosen toaccept the plea offer. While the court found that Appellant did notwant to accept the plea so he could continue with his nursingeducation, a guilty verdict, conviction and a ten-year prison term wereobviously going to preclude that option. Furthermore, there was nodispute that the plea remained in effect or that the trial court wouldhave accepted the plea.
*6 A criminal trial is not the occasion for hoping for a miracleat a client's expense. Had defense counsel properly advised Appellant,when on the day of trial counsel put on the record that a plea offer wasmade and rejected, then the ineffectiveness claim could be rejected.But this would require that defense counsel inform the court, andAppellant, that counsel had urged him to accept the plea, advised thathe was highly likely to be convicted because the evidence wasoverwhelming, and that Appellant's rejection of the very reasonableplea offer was against defense counsel's clear advice to the
9
contrary.
Defense counsel acknowledged that, had she thought there wasno possible chance for an acquittal (which there wasn't, absent a jurypardon), she would have declined to represent Appellant at trial. Butthat is not the proper response here. Instead, what defense counselshould have told Appellant, in so many words, was: "You have noreasonable chance of winning this trial, and if you turn down the plea,you are choosing a prison sentence over a sentence of house arrest andprobation, so I must urge you in the most strenuous terms possible toaccept the plea, and if you do not, I must establish a record that yourdecision is against my legal advice." Whether defense counsel wouldthen be allowed to withdraw from representing Appellant is notrelevant here. And had Appellant, in this scenario, demanded defensecounsel withdraw, this issue would not be before us here."
This Court has jurisdiction to review the instant case on the basis of the clear
conflict identified by the Dissenting opinion. Inasmuch as there are numerous
criminal prosecutions in this state that involve postconviction relief under Alcorn,
this Court should exercise its conflict jurisdiction in this case so that disparate
results in different appellate districts can be avoided.
CONCLUSION
Petitioner respectfully requests that this Honorable Court exercise its
discretion to review the instant case and resolve the existent conflict.
10
Respectfully submitted,
O'Brien Hatfield P.A.511 West Bay Street, Suite 330Tampa, Florida 33606Email: [email protected]
By: /s/ Rachael E. BusheyRachael E. Bushey, EsquireFlorida Bar No.: 0111396
DESIGNATION OF E-MAIL ADDRESSES
I HEREBY DESIGNATE the following e-mail addresses for the purpose of
service of all documents required to be served pursuant to Rule 2.516 in this
proceeding: [email protected].
By: /s/ Rachael E. BusheyRachael E. Bushey, EsquireFlorida Bar No.: 0111396
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of this brief was electronically filed with
the Florida Supreme Court, emailed to the Attorney General's Office, and mailed
to the Appellant by United States mail, on this the 29th day of March 2017.
By: /s/ Rachael E. BusheyRachael E. Bushey, EsquireFlorida Bar No.: 0111396
11
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this brief complies with the font requirements of
Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure.
By: /s/ Rachael E. BusheyRachael E. Bushey, EsquireFlorida Bar No.: 0111396
12
2017 WL 836931 The appellate court will not substitute its
Only the Westlaw citation is currently available. judgment for that of the post-conviction
District Court ofAppeal of Florida, court on questions of fact, the credibility ofFirst District. witnesses, or the weight given to the evidence.
Anthony M. WAIT, Appellant,
v.
STATE of Florida, Appellee.
CASE NO. 1D16-1167
Opinion filed March 3, 2017.
Synopsis
Background: Defendant moved for post-conviction relief,
on the basis of ineffective assistance of counsel, after
he was convicted of making, possessing, throwing, or
discharging of a destructive device and transporting a
firebomb. The Circuit Court, Bay County, hma B
m, 1, denied the motion. Defendant appealed.
The District Court of Appeal, R m, C.1,
held that competent, substantial evidence supported post-conviction court's finding that trial counsel's assessment
when advising defendant regarding plea offer that it was
"possible" for defendant to be acquitted at trial was not
unreasonable and, thus, was not ineffective assistance.
Competent, substantial evidence supported
post-conviction court's finding that trial
counsel's assessment when advising defendant
regarding plea offer that it was "possible"
for defendant to be acquitted at trial
was not unreasonable and, thus, was not
ineffective assistance entitling him to relief
after he rejected plea offer and was ultimately
convicted of making, possessing, throwing,
or discharging of destructive device, and
transporting a firebomb; codefendant had
gone to trial first and was acquitted, in
assessing defendant's "chance" of acquittal,
counsel referred to fact that defendant's
and former codefendant's cases had same
operative facts, and defendant admitted that
counsel went over his statements and was told
that case would come down to credibility.
Affirmed.
, L filed dissenting opinion. U
West Headnotes (4)
rimina Imi
The appellate court reviews a post-conviction
court's factual findings for competent,
substantial evidence and its legal conclusionsde novo.
Even if trial counsel was ineffective in advising
defendant regarding chances of success at
trial and whether or not to accept plea offer,
defendant could not show prejudice required
to establish entitlement to post-conviction
relief on basis of ineffective assistance after
he proceeded to trial and was convicted of
charged offenses; post-conviction court made
credibility finding that defendant's testimony
that he would have accepted plea offer but for
counsel's advice was not credible. . .
s so d am
An appeal from the Circuit Court for Bay County. JamesB. Fensom, Judge.
Attorneys and Law Firms
R of O'Brien Hatfield, P.A.,Tampa, for Appellant.
, Attorney General, and koi
Wm, Assistant Attorney General, Tallahassee, for
Appellee.
Opinion
WBERTS, C.J.
*1 Appellant, Anthony M. Wait, appeals the denial of
his hiä R P e&re 50 motion for
post-conviction relief. We affirm.
Appellant and a co-defendant were charged (under the
principal theory) with making, possessing, throwing, or
discharging of a destructive device, which carried a
mandatory minimum sentence of ten years' imprisonment,
and with transporting a firebomb. The co-defendant went
to trial first and was acquitted. After the former co-defendant was acquitted, he agreed to testify against
Appellant. Right before Appellant's trial began, Appellant
rejected a favorable plea offer that would have adjudicated
him guilty of a felony, required him to write a letter of
apology to the victim, and would have placed him on two
years of community control followed by three years of
probation. Appellant proceeded to trial and was convictedof both crimes.
In Appellant's motion for post-conviction relief, he argued
that his trial counsel was ineffective for failing to properly
advise him to accept the plea offer and about all of the
pertinent matters, such as the principal theory, relevant to
his case. He further argued that trial counsel's failure to
advise him about all of the pertinent matters denied him
the ability to make an informed decision about whether or
not he should accept the plea offer. The post-conviction
court granted Appellant an evidentiary hearing and made
extensive findings. On appeal, Appellant now argues
that trial counsel was ineffective when she affirmatively
advised him to reject a favorable plea based upon
her unreasonable expectations of success at trial. Since
Appellant did not amend his post-conviction relief motion
below to say that trial counsel affirmatively advised him
to reject the plea, the State was denied the opportunity
to conclusively refute the inference that trial counsel
conveyed her personal beliefs about Appellant's case to
Appellant. His rephrased argument on appeal invites a
different analysis from the analysis provided by the post-
conviction court and invites this Court to improperly
dismiss the post-conviction court's findings of credibility
and reweigh the evidence. We decline to accept Appellantrephrased argument on appeal.
During the evidentiary hearing on Appellant's post-
conviction motion, Appellant's trial counsel testified that
she met with Appellant multiple times and went over
the evidence against him including: the discovery she
received from the State; Appellant's entire interrogation
with the law enforcement; the evidence from the former
co-defendant's trial; the applicable case law including
the principal theory; and the former co-defendant's
deposition. Trial counsel testified that she gave Appellant
a copy of his interrogation and they discussed Appellant's
meriminating statements. Trial counsel also testified that
she believed Appellant understood the principal theory
based upon his testimony at trial, which was he did not
know about the former co-defendant's intentions nor that
there was a firebomb in the car. The post-conviction
court found trial counsel's testimony more credible than
Appellant's testimony with regards to the legal advice
that she provided to Appellant and found Appellant
understood the principal theory based upon his trial
testimony. Trial counsel affirmatively testified that she
never advised Appellant to reject the plea offer and had
advised Appellant that it was a "good plea." Appellant
testified that trial counsel told him to reject the plea offer,
but the post-conviction court did not find Appellant's
testimony credible. Trial counsel testified that she left the
decision up to Appellant about whether or not to acceptthe plea offer.
*2 Because the evidence does not show that trial counsel
actually advised Appellant to accept the plea, the post-
conviction court had to determine whether or not trial
counsel provided Appellant with enough information to
allow him to make an informed decision about whether or
not he should accept the plea. The inquiry must focus on
what trial counsel conveyed to Appellant about his chance
of an acquittal and not on what she believed. Trial counsel
testified that she told Appellant that it was "possible for
him to win" and he had a "chance," but she also said she
would not guarantee success. There is no credible record
evidence, as suggested by the dissent, that trial counsel
conveyed or displayed her confidence of obtaining an
acquittal to Appellant.
In her assessment of Appellant's chance of an acquittal at
trial, trial counsel testified that Appellant's case and the
former co-defendant's case possessed the same operative
facts with two exceptions. Those two exceptions are the
testimony of the former co-defendant and Appellant's own
inculpatory statements that he was talked into going along
with the former co-defendant's plan to throw the firebomb
at the victim's house and that he drove the former co-
defendant to the house. Appellant admitted that trial
counsel went over his statements to law enforcement and
Appellant thought those statements could be harmful if
that interrogation was played for the jury. Appellant also
admitted that trial counsel went over the deposition of
the former co-defendant with him. Appellant knew that
the former co-defendant was going to testify against him
and identify him as the person who threw the firebomb.
Appellant admitted that trial counsel told him that his
case would come down to credibility. The court found trial
counsel's assessment that it was "possible" for Appellant
to be acquitted was not unreasonable based upon her
perspective at the time Appellant rejected the plea offer. It
also found trial counsel was not ineffective.
[1] [2] We review the post-conviction court's factual
findings for competent, substantial evidence and its legalconclusions de novo. See
. This Court will not substitute
its judgment for that of the post-conviction court on
questions of fact, the credibility of witnesses, or the weightgiven to the evidence. See
The framework for analyzing claims of ineffective
assistance of counsel was articulated in
First, the defendant must show
that counsel's performance was
deficient. This requires showing that
counsel made errors so serious that
counsel was not functioning as the
"counsel" guaranteed the defendant
by the Sixth Amendment. Second,
the defendant must show that the
deficient performance prejudiced the
defense. This requires showing that
counsel's errors were so serious as to
deprive the defendant of a fair trial,
a trial whose result is reliable. Unless
a defendant makes both showings, it
cannot be said that the conviction ...
resulted from a breakdown in the
adversary process that renders the
result unreliable.
The post-conviction court is instructed to view trial
counsel's performance from her perspective at the time
of the event in order to avoid the distorting effects ofhindsight. M m W W 9
[3] The dissent is correct in stating that trial counsel
had a duty to correctly advise Appellant about his
chance at trial. There is nothing in the record, other
than Appellant's vacillating testimony during the post-
conviction relief hearing that was found not to be credible,
that shows trial counsel's assessment of a chance of or a
possibility of an acquittal was inaccurate. Actually, there
is competent, substantial evidence to support the post-
conviction court's finding that trial counsel's assessment
that it was "possible" for Appellant to be acquitted at trial
was not unreasonable. Trial counsel informed Appellant
that his case came down to credibility. Trial counsel was
going to do her best to discredit the former co-defendant
as he was high on pills and inebriated at the tim.e of
the incident. During the former co-defendant's deposition,
he admitted that he initially lied to law enforcement
about his presence at the scene of the crime and only
told them that Appellant threw the firebomb after law
enforcement confronted him with evidence that he was
p.resent. Additionally, the former co-defendant did not
actually see Appellant throw the firebomb. Appellant
told trial counsel that he had been coerced into giving
law enforcement the statements that he provided during
his interview, and she found him credible. If the jury
had found Appellant's testimony at trial more credible
than the other evidence presented, this case would not be
before this Court. Therefore, the dissent's assertion that
Appellant had no possibility of an acquittal is inaccurate.
There is a distinct difference between the words "possible"
or "chance" and "reasonable chance" as it is "possible"
and one does have a "chance" to win the lottery, but one
does not have a "reasonable possibility" to win the lottery.
Trial counsel informed Appellant about the things that that Appellant would have fired his trial counsel and
must happen in order for Appellant to obtain an acquittal. sought new counsel who would have sought an acquittal
Therefore, trial counsel's advice was accurate. rather than urge him to accept the plea.
*3 Trial counsel's conveyed assessment of a "possible"acquittal with the understanding that the jury would have
to find Appellant's testimony at trial more credible than
the other evidence, along with the explanation about
how the case law applied to all the evidence, provided
Appellant all the information required by the law to make
an informed decision about whether or not he should
accept the plea offer. The record reveals that Appellant
was reluctant to accept the favorable plea offer because
he would become a convicted felon by entering the plea.
Trial counsel testified that Appellant told her he did not
want to be a convicted felon over "burnt grass." Appellant
was also a nursing student who was close to finishing his
bachelor's degree and knew he would not be able to be a
licensed nurse if he was a convicted felon. Knowing his
fate was sealed if the jury did not find his trial testimony
more credible than the other evidence, he still chose to
take his case to trial. There is nothing in the record, as
suggested by the dissent, to suggest that trial counsel did
not make him aware of what he was facing if the jury
found his testimony less credible than the other evidence
other than Appellant's vacillating testimony about what
he and trial counsel discussed. If this Court were to accept
the statement that Appellant did not know what would
happen if the jury did not believe his trial testimony, then
that would mean Appellant did not know he was facing a
minimum mandatory sentence of ten years in prison. The
post-conviction court stated that trial counsel did not fail
to advise Appellant of that fact, and Appellant did not
raise that claim in his motion for post-conviction relief.
In retrospect, Appellant should have taken the plea, but
this Court cannot look at the facts through the eyes of
someone who did not obtain an acquittal. This Court
can only view facts as they existed at the time Appellant
rejected the plea offer and chose to go to trial. Appellant
was provided the facts required by law to make an
informed decision about whether or not he should have
accepted the plea offer. Based upon the fact that Appellant
.knew his case came down to his credibility at trial, his
former co-defendant was going to testify that Appellant
was solely responsible for the crimes, and his own prior
statements would be used against him, it is not likely that
he would have accepted the plea offer had trial counsel
advised him as suggested by the dissent. It is more likely
[4j Even if the post-conviction court had found trial
counsel was ineffective, Appellant cannot show prejudice.
Under Sciad, Appellant had to show that trial
counsel's performance was deficient and he was prejudiced
by her performance in order to be entitled to relief. ii
4 S M1 In order to show prejudice, a
defendant must show that: (1) he would have accepted
the plea offer had trial counsel advised him correctly; (2)
the State would not have withdrawn the plea offer; (3)
the trial court would have accepted the plea offer; and (4)
the conviction or sentence or both would have been less
severe under the plea offer than the defendant received
under the judgment and sentence that were actually
imposed. ________ __. _
. The post-conviction court found
Appellant's testimony that he would have accepted the
plea offer unbelievable. The post-conviction court is the
court that assesses credibility and assigns the weight of the
evidence, and this Court cannot substitute its judgment
for that of the post-conviction court. See Sæ&
3. The dissent fails to acknowledge that
the post-conviction court made a finding of fact that
Appellant would not have accepted the plea offer, and
that finding is supported by competent and substantial
evidence. The post-conviction court's finding is supported
by its credibility finding that Appellant's testimony was
not believable that he would have accepted the plea and
trial counsel's testimony about her conversations with
Appellant and his reluctance to become a convicted felon.
AFFIRMED.
O , J., CONCURS; la H IOM M, J., DISSENTS
with opinion.
B.L.THOMAS, J., DISSENTING.
I respectfully dissent, because Appellant established that
he was entitled to relief under
, and
. Defense
counsel provided ineffective assistance to Appellant by
affirmatively advising him that he had a "possibility"
of obtaining an acquittal, when under the "facts and
circumstances" of this case, Appellant had a zero
possibility of obtaining an acquittal. Cf. hm
(affirming denial
of evidentiary hearing where, although defense counsel
informed client he should reject plea offer, and defendant
was convicted and received harsher sentence, defendant
failed to allege that "counsel's assessment of the chances
of success at trial was unreasonable under the facts
and circumstances of this case"), recededfrom on other
grounds by ún i l . Defense counsel,
who had never previously tried a criminal case in Florida,
failed to properly inform Appellant that he had no
reasonable alternative to accepting the State's highly
advantageous plea offer, which required no incarceration.
Defense counsel misled Appellant, who, thinking he could
be acquitted, was predictably convicted and received a
mandatory ten-year prison term.
*4 Defense counsel's unjustified confidence regarding thelikely outcome at trial misadvised Appellant at a critical
stage of the criminal prosecution. Thus, counsel provided
ineffective assistance, in violation of the Sixth Amendment
to the United States Constitution, under
Based on the evidence, including Appellant's motive and
his inculpatory statements to the police, no reasonable
jury would have acquitted Appellant. This was not a
case where identification was at issue, where the State's
testifying witness was cooperating in order to hope
to receive a more favorable plea offer, or where the
occurrence of the crime was in question. Instead, this was
a case where any reasonable defense counsel would have
warned Appellant in the most vigorous manner possible
that a jury would find Appellant guilty.
When an attorney negligently advises a client that they
may have a possibility for an acquittal, when in fact there
is no reasonable possibility for such a result, ineffective
assistance is demonstrated if the defendant testifies that
he or she would have accepted the plea offer with
professionally accurate advice. See
(citing
for proposition
that " '[a] claim that misinformation supplied by counsel
induced a defendant to reject a favorable plea offer' "
can state a facially valid postconviction claim, and that
defendant must allege that "counsel's assessment of the
chances of success at trial was unreasonable" (quoting
(ordering hearing on claim, based in part on defendant's
claim that counsel failed to inform him of maximum
sentence or "why case was not defensible"). Here, despite
defense counsel's unrebutted testimony that she informed
Appellant the plea offer was a good offer, she failed to
advise Appellant to forego a trial that was certain to
result in a conviction and mandatory prison term. Instead
of enabling Appellant's wishful thinking that he (and
counsel) might prevail at trial, defense counsel had an
affirmative obligation to do just the opposite-encourage
Appellant to accept the plea offer in the firmest manner,
consistent with counsel's obligation to zealously represent
Appellant at trial.
Although the trial court rejected the credibility of
Appellant's self-serving testimony that counsel had
not informed him that his pretrial statements were
inculpatory, even this finding supports rather than
defeats Appellant's argument, in part, at least, as it goes
to the reality faced by defense counsel and Appellant:
Appellant's own words to law enforcement were sure toinculpate him before the jury, providing all the more
reason to accept the plea offer.
Furthermore, there are two fundamental and salient facts
here which are not in dispute regarding the evidence
Appellant faced at trial. First, there was no dispute
that the person testifying against Appellant, who had
previously been charged and acquitted, was going to
identify Appellant as the person who was the actual
perpetrator in firebombing the doctor's home. And
second, this same witness would credibly establish, along
with other evidence, that no one except Appellant had any
motive to commit this violent crime, because Appellant
thought the victim, a doctor, had provided negligent
medical care to Appellant's grandmother. And the
acquittal of the other party who testified against Appellant
was not a fact or circumstance that favored Appellant.
The other party did not give similar inculpatory pretrial
statements and did not have Appellant's motive for
committing the crime. Even if there was evidence that the
other party may have been a principal to the offense, this
fact did not exculpate Appellant, but only gave the jury
reason to think Appellant was the actual perpetrator who
relied on the other party's experience with explosives to
help carry out the crime.
*5 Despite these monumental disadvantages, however,defense counsel advised Appellant that there was a real
possibility of success:
I advised him that it is possible that he can win. I advised
him also that he could take the plea. I would never go to
trial knowing the client would lose. If he thought he had
a chance, if I thought no way you had a chance, I would
get off the case before I tried the case.
But if he was confident that he could win and I was
confident that he could win, I was confident that we could
at least cast reasonable doubt, then yes, I'd say there is
a chance you can win. I would never guarantee success,
ever. But, yes, I gave him a chance that, I did say there
was a chance he could win.
(Emphasis added.) This was not trial strategy, but
unjustified confidence and a failure to properly advise
Appellant that he had to accept the plea if he wanted
to avoid a sure conviction and ten years in state prison.
Defense counsel's illusory evaluation of success was not
based on any reasonable view of the evidence, but only
on mutually reinforcing false hopes between defense
counsel and Appellant. Defense counsel's performance
was therefore deficient by misleading Appellant into
a false expectation of success at trial, despite the
overwhelming evidence of Appellant's guilt.
The fact that Appellant, a person not trained in the law,
thought he might obtain an acquittal is not dispositive,
when the deficient performance is defense counsel's
failure to warn of the adverse consequences Appellant
was certain to suffer should he go to trial. It is only
speculation to assume Appellant would have continued
to obstinately refuse to accept such a generous plea offer,
given the State's evidence, as it was defense counsel's
professional obligation, as counsel, to properly advise
Appellant, which would have removed all doubt as to
whether Appellant would have accepted a plea offer
that no rational defendant would refuse. Cf. M
(stating that "[i]t simply flies in the face of
common sense" and indulges in improper speculation to
uph.old summary judgment based on physician's failure
to warn other physician of potential adverse medical
consequences "conveyed with due concern and gravity
by professional colleagues," even where physician, who
was not warned, testified he received similar information
from lay person). Here, it "flies in the face of common
sense" to speculate that Appellant would have chosen a
conviction and ten years' imprisonment, rather than plead
guilty but avoid incarceration. Appellant, like all criminal
defendants, must rely on the legal advice of an attorney to
"convey[ ] with due concern and gravity" the catastrophic
consequences that will follow a reckless decision to turn
down the only viable option of a favorable and lenient
plea settlement when faced with a certain conviction and
lengthy incarceration.
In order to determine if a defendant was prejudiced by
trial counsel's deficiencies during a plea offer, a defendant
must show that: (1) he would have accepted the plea
offer had trial counsel advised him correctly; (2) the State
would not have withdrawn the plea offer; (3) the trial
court would have accepted the plea offer; and (4) the
conviction or sentence or both would have been less severe
under the plea offer than the defendant received under
the judgment and sentence that were actually imposed.
O . All criteria here are met. Because of defense
counsel's ineffective legal advice, Appellant was denied the
opportunity to make an informed choice, and the record
shows that had he been properly informed, in blunt, no-
uncertain terms that he was going to be convicted and
would be required to serve a ten-year prison term, he
would have chosen to accept the plea offer. While the
court found that Appellant did not want to accept the
plea so he could continue with his nursing education, a
guilty verdict, conviction and a ten-year prison term were
obviously going to preclude that option. Furthermore,
there was no dispute that the plea remained in effect or
that the trial court would have accepted the plea.
*6 A criminal trial is not the occasion for hoping for a
miracle at a client's expense. Had defense counsel properly
advised Appellant, when on the day of trial counsel put
on the record that a plea offer was made and rejected,
then the ineffectiveness claim could be rejected. But this
would require that defense counsel inform the court, and
Appellant, that counsel had urged him to accept the plea,
advised that he was highly likely to be convicted because
the evidence was overwhelming, and that Appellant's
rejection of the very reasonable plea offer was against
defense counsel's clear advice to the contrary.
Defense counsel acknowledged that, had she thought
there was no possible chance for an acquittal (which there
wasn't, absent a jury pardon), she would have declined
to represent Appellant at trial. But that is not the proper
response here. Instead, what defense counsel should have
told Appellant, in so many words, was: "You have no
reasonable chance of winning this trial, and if you turn
down the plea, you are choosing a prison sentence over
a sentence of house arrest and probation, so I must
urge you in the most strenuous terms possible to accept
the plea, and if you do not, I must establish a record
that your decision is against my legal advice." Whether
defense counsel would then be allowed to withdraw from
representing Appellant is not relevant here. And had
Appellant, in this scenario, demanded defense counsel
withdraw, this issue would not be before us here.
The final question here is what precise remedy should be
provided. The State had offered a plea of no incarceration,
but community supervision of five years, to include two
years of community control. If Appellant was granted
relief, I would have recommended the trial court consider
the analysis and commentary of LMix:
The specific injury suffered by defendants who decline
a plea offer as a result of ineffective assistance of
counsel and then receive a greater sentence as a result
of trial can come in at least one of two forms. In
some cases, the sole advantage a defendant would have
received under the plea is a lesser sentence. This is
typically the case when the charges that would have
been admitted as part of the plea bargain are the same
as the charges the defendant was convicted of after trial.
In this situation the court may conduct an evidentiary
hearing to determine whether the defendant has shown
a reasonable probability that but for counsel's errors
he would have accepted the plea. If the showing is
made, the court may exercise discretion in determining
whether the defendant should receive the term of
imprisonment the government offered in the plea, the
sentence he received at trial, or something in between.
In some situations it may be that resentencing alone
will not be full redress for the constitutional injury.
If, for example, an offer was for a guilty plea to a
count or counts less serious than the ones for which a
defendant was convicted after trial, or if a mandatory
sentence confines a judge's sentencing discretion after
trial, a resentencing based on the conviction at trial
may not suffice. See, eg,
K In these
circumstances, the proper exercise of discretion to
remedy the constitutional injury may be to require
the prosecution to reoffer the plea proposal. Once this
has occurred, the judge can then exercise discretion in
deciding whether to vacate the conviction from trial and
accept the plea or leave the conviction undisturbed.
In implementing a remedy in both of these situations,
the trial court must weigh various factors; and the
boundaries of proper discretion need not be defined
here. Principles elaborated over time m decisions of
state and federal courts, and in statutes and rules,
will serve to give more complete guidance as to the
factors that should bear upon the exercise of the judge's
discretion. At this point, however, it suffices to note two
considerations that are of relevance.
*7 First, a court may take account of a defendant's
earlier expressed willingness, or unwillingness, to accept
responsibility for his or her actions. Second, it is
not necessary here to decide as a constitutional rule
that a judge is required to prescind (that is to say
disregard) any information concerning the crime that
was discovered after the plea offer was made. The time
continuum makes it difficult to restore the defendant
and the prosecution to the precise positions they
occupied prior to the rejection of the plea offer, but
that baseline can be consulted in finding a remedy that
does not require the prosecution to incur the expense of
conducting a new trial.
Here, this case appears to qualify for the second category
described in , because Appellant was convicted of
an offense requiring imposition of a mandatory prison
term. Thus, the most practical remedy would be to order
the state attorney to reoffer the original plea offer, allow
Appellant to accept a modified plea offer which includes
a guilty plea to both offenses, and credit for time served
in state prison up to the date this case is resolved, and
issue an order vacating the conviction resulting from
the trial. . This was a very
serious crime, and Appellant's legal and moral culpability
is not in doubt. The prison sentence he has served is
appropriate punishment for this violent offense, and by
including it in a modified postconviction plea offer, the
interests ofjustice and the recognition of the "considerable
resources the State properly invested in [Appellant's]prosecution" would be properly accommodated.
. As recognized in , the courts which face these
types of claims must be allowed latitude in crafting All Citations
remedies.
--- So.3d ----, 2017 WL 836931I would reverse for the reasons stated above for further
proceedings. Thus, I respectfully dissent.
FootnotesThe trial court conducted a prompt and comprehensive evidentiary hearing, and while I disagree with the legal conclusionsof the trial court's order, based on the facts adduced at the hearing in a light most favorable to the order, I commend thetrial court's efforts to ensure Appellant's claim was thoroughly and timely evaluated.
