DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
JACOB BICKEL,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 2D20-1394
September 17, 2021
Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit
Court for Polk County; Keith P. Spoto, Judge.
Jacob Bickel, pro se.
Ashley Moody, Attorney General, Tallahassee, for Appellee.
SLEET, Judge.
Jacob Bickel challenges the postconviction court's order
summarily denying his Florida Rule of Criminal Procedure 3.850
motion. In 2017, Bickel entered negotiated guilty pleas to traveling
to meet a minor and attempted lewd or lascivious battery and was
sentenced pursuant to agreement to fifteen years' prison on the
traveling count and to a consecutive five years' sex offender
probation on the other count. He subsequently filed a rule 3.850
motion alleging eight claims of ineffective assistance of counsel. On
appeal, he challenges the denial of only six of those claims. We find
error only in the court's summary denial of ground six and reverse
as to that claim only.
In June 2014, Bickel was arrested in the instant case in Polk
County for unlawful use of a two-way communication device, use of
a computer for child exploitation, traveling to meet a minor to
commit an unlawful sex act, and attempted lewd or lascivious
battery.1 He was arrested later that year in Sarasota County for
acts committed prior to his Polk County arrest. He then was
arrested in March 2016 in Hillsborough County for offenses
committed prior to both the Sarasota and Polk County offenses.
Trial counsel represented him in all three cases.
1 The State ultimately nolle prossed the first two charges.
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In ground six of his postconviction motion, Bickel alleged that
counsel was ineffective for advising him not to accept an early plea
offer of five years' prison followed by ten years' sex offender
probation that covered all three cases pending against him.
According to Bickel, that offer was made in December 2014.
He further alleged in his motion that at a July 18, 2014, bond
reduction hearing, the lead detective in his case testified that the
laptop computer seized from Bickel had been lost by law
enforcement. According to Bickel, he had a conversation with
counsel after the State advanced the December 2014 plea offer, and
counsel told him that the State had found more than 100
photographs involving minors on the laptop but that counsel could
not verify that claim until discovery occurred. Bickel maintained
that he asked counsel if the detective's July 2014 testimony about
the laptop being lost had to be true because it was given under
oath, and according to Bickel, trial counsel responded, "That's
true." He further alleged in his motion that counsel explained to
him that the computer being lost "would mean that the State lacks
chain of custody and would therefore have no case." According to
Bickel, counsel told him five years in prison was too high an offer
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and that the "magic number" was three years. But when Bickel was
arrested in 2016 in Hillsborough County, while the instant charges
were still pending, he learned that the laptop had never been lost.
Bickel maintains that had counsel investigated and discovered
that the detective's testimony regarding the lost laptop was false, he
would have accepted the five-year plea offer in 2014. By the time
Bickel learned that the laptop had never been lost, the five-year plea
offer was off the table and his only option in the instant case was to
accept the State's only offer at the time, which was for fifteen years'
prison followed by five years' sex offender probation.
The postconviction court ordered the State to respond to this
claim but eventually summarily denied it. In doing so, the court's
order only states the following: "In claim 6, Defendant argues that
trial counsel was ineffective for advising him to reject an
advantageous plea offer. The State argues that no offer was made
for five years in the Department of Corrections followed by ten years
of probation." The court attached the State's response, in which the
State asserted that no five-year offer was ever extended, and its
attachments, including a May 2017 email exchange between
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Bickel's counsel and the prosecutor regarding plea negotiations in
2017.
Bickel argues on appeal that these attachments do not
conclusively refute his claim. We agree.
To uphold the . . . summary denial of claims raised in a
[rule] 3.850 motion, the claims must be either facially
invalid or conclusively refuted by the record. Further,
where no evidentiary hearing is held below, we must
accept the defendant's factual allegations to the extent
they are not refuted by the record.
McLin v. State,
827 So. 2d 948, 954 (Fla. 2002) (quoting Foster v.
State,
810 So. 2d 910, 914 (Fla. 2002)).
Neither the 2017 email exchange between the State and
Bickel's counsel nor the State's assertion in its response to this
claim conclusively refutes Bickel's allegation that the State made a
five-year plea offer in 2014 and that counsel erroneously advised
him to reject that offer based on counsel's misunderstanding of the
State's evidence and failure to investigate the detective's claim that
the laptop was lost. The emails only indicate that in 2017 counsel
was attempting to obtain either an eight-year or a ten-year offer.
They do not reference any offers that may or may not have come
before. The fact that the defense and the State were still negotiating
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offers in 2017 in no way refutes Bickel's claim that a five-year offer
was made and rejected in 2014. Additionally, the postconviction
court "may not rely on argument by counsel to make factual
determinations." State v. Crumbley,
247 So. 3d 666, 671 (Fla. 2d
DCA 2018) (quoting State v. Jones,
30 So. 3d 619, 622 (Fla. 2d DCA
2010)). As such, the State's assertion in its response that no five-
year offer was ever made is not competent substantial evidence and
does not support the trial court's implicit finding that no such offer
was made.
Accordingly, we reverse the summary denial of ground six of
Bickel's motion and remand for the postconviction court to either
attach record excerpts conclusively refuting the claim or hold an
evidentiary hearing on the claim. We affirm in all other respects.
Affirmed in part, reversed in part, and remanded.
KHOUZAM and LABRIT, JJ., Concur.
Opinion subject to revision prior to official publication.
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