Darrion R. Kitchen v. State of Florida , 266 So. 3d 265 ( 2019 )


Menu:
  •            FIRST DISTRICT COURT OF APPEAL
    STATE OF FLORIDA
    _____________________________
    No. 1D17-3309
    _____________________________
    DARRION R. KITCHEN,
    Appellant,
    v.
    STATE OF FLORIDA,
    Appellee.
    _____________________________
    On appeal from the Circuit Court for Duval County.
    Angela M. Cox, Judge.
    March 13, 2019
    WOLF, J.
    Appellant challenges the summary denial of his
    postconviction motion filed pursuant to Florida Rule of Criminal
    Procedure 3.850. We affirm as to ground 1 without comment. We
    reverse and remand for further proceedings for grounds 2 and 3.
    In ground 2, appellant argued his counsel was ineffective for
    failing to sufficiently advise him regarding a plea offer for 7 years
    in prison. He asserted counsel failed to tell him that 7 years in
    prison was the minimum sentence that he could receive under
    the guidelines if he were found guilty. If he had been properly
    advised, he argued he would have accepted the offer, 1 the State
    would not have revoked the offer, the trial court would have
    accepted the offer, and he would have received a lesser sentence
    than he ultimately received.
    Appellant’s claims were legally sufficient. Defense counsel is
    required to “advise the defendant of . . . all pertinent matters
    bearing on” the decision to accept or reject a plea offer, including
    the possible range of sentencing. Fla. R. Crim. P. 3.171(c)(2)(B).
    See also Depriest v. State, 
    177 So. 3d 701
     (Fla. 1st DCA 2015);
    Robinson v. State, 
    148 So. 3d 535
    , 537 (Fla. 2d DCA 2014). Thus,
    we remand either for the court to attach portions of the record
    conclusively refuting these claims or to conduct an evidentiary
    hearing.
    For ground 3, appellant alleged counsel was ineffective for
    misadvising him that his testimony was not needed. Appellant
    was charged with sexual battery, and his theory of defense was
    that the sexual encounter was consensual. However, he argued
    counsel failed to appreciate that the defense lacked any direct
    evidence of consent apart from appellant’s testimony. Appellant
    argued if he had been properly advised, he would have testified
    that the sex was consensual, that the victim initiated the sex,
    and that she expressed regret afterwards because she was afraid
    her boyfriend would find out. He argues his testimony probably
    would have resulted in a different verdict.
    The postconviction court found the record conclusively
    refuted appellant’s claim because during a colloquy, appellant
    stated he understood that it was his decision whether or not to
    testify. However, the supreme court has clarified that even where
    the record conclusively demonstrates that “the defendant
    knowingly and voluntarily decided not to testify. . . . [a] separate
    question is whether [counsel’s] advice [to the defendant], even if
    voluntarily followed, was nevertheless deficient because no
    1   Appellant explicitly alleged that he rejected the State’s
    offer: “Mr. Kitchen alleges that he rejected the State’s plea offer
    and proceeded to trial because he was not fully informed.”
    (Emphasis added).
    2
    reasonable attorney would have discouraged [the defendant] from
    testifying.” Lott v. State, 
    931 So. 2d 807
    , 818-19 (Fla. 2006).
    Here, appellant did not challenge the voluntariness of his
    decision not to testify. Instead, he argued counsel’s advice that he
    should choose not to testify was deficient performance. The
    postconviction court did not address this argument. We reverse
    and remand for the court either to attach portions of the record
    refuting this claim or to hold an evidentiary hearing. 2
    AFFIRMED in part, REVERSED and REMANDED in part.
    LEWIS and RAY, JJ., concur.
    _____________________________
    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
    _____________________________
    Darrion R. Kitchen, pro se, Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
    2 We note the State argues that appellant could not show
    prejudice as to this ground because even if he had testified, his
    theory of defense that the sexual encounter was consensual
    would not have been successful. The State asserts he was charged
    with the sexual battery of a minor, and consent is not a defense to
    that charge. The State is mistaken. Appellant was charged with
    sexual battery on a person twelve years of age or older as
    prohibited by section 794.011(5), Florida Statutes. However, the
    State did not allege that the victim was less than 18 years old.
    The victim testified that she was 21 years old at the time of trial,
    which occurred 6 months after the incident took place.
    3
    

Document Info

Docket Number: 17-3309

Citation Numbers: 266 So. 3d 265

Filed Date: 3/13/2019

Precedential Status: Precedential

Modified Date: 3/13/2019