Willie B. Carey v. State of Florida , 190 So. 3d 122 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
WILLIE B. CAREY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D15-1015
[October 7, 2015]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; Jack Schramm Cox,
Judge; L.T. Case No. 502011CF007136AXMB.
Willie B. Carey, Blountstown, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T.
Acuna, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Willie B. Carey appeals the order summarily denying his rule 3.850
motion. We reverse the summary denial of ground three and remand with
directions that he be allowed an opportunity to amend. We affirm the
summary denial of the other grounds without further comment.
In his third ground, Carey alleged that ineffective assistance of his
counsel resulted in his rejecting a favorable plea offer. He alleged counsel
failed to advise him that he qualified for enhanced sentencing as a Prison
Releasee Reoffender (PRR) and as a habitual felony offender (HFO); he did
not learn he qualified until the State filed notices on the date his trial
began. He further alleged counsel did not advise him of the maximum
sentences he could receive as a PRR and a HFO, or that he would have to
serve 100 percent of his sentence as a PRR. He also alleged that counsel
misadvised him he undoubtedly would win his motion to suppress, and
the prosecution would have no substantial evidence to support a finding
of guilt, so he would win at trial. He lastly alleges that if he had been
aware his motion to suppress could be denied, or of the penalties he
actually faced, he would have accepted the State’s offer.
Ground three was facially insufficient under Alcorn v. State, 121 So. 3d
419 (Fla. 2013). In Alcorn, the supreme court discussed what a defendant
must allege and prove in order to demonstrate prejudice in connection with
a claim that counsel’s ineffectiveness caused the defendant to lose an
advantageous plea offer. Id. at 429-30 (citing Lafler v. Cooper, 132 S. Ct.
1376 (2012), and Missouri v. Frye, 132 S. Ct. 1399 (2012)):
Specifically, to establish prejudice, the defendant must allege
and prove a reasonable probability, defined as a probability
sufficient to undermine confidence in the outcome, 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.
Id. at 430 (citing Frye, 132 S. Ct. at 1410).
When a motion is insufficient, the movant ordinarily is entitled to at
least one opportunity to amend, pursuant to Spera v. State, 971 So. 2d
754 (Fla. 2007). E.g., Ramos v. State, 141 So. 3d 643, 645 (Fla. 4th DCA
2014). In response to this court’s order to show cause, the State agrees
that Carey should be permitted an opportunity to amend.
Accordingly, we reverse and remand for the trial court to allow Carey
an opportunity to amend ground three to correct the pleading deficiencies,
if he can do so in good faith.
Affirmed in part, Reversed in part, and Remanded.
CIKLIN, C.J., MAY and DAMOORGIAN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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