JERMAINE BROWN v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JERMAINE BROWN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D17-2428

[May 2, 2018]

Appeal of order denying rule 3.850 motion from the Circuit Court for

the Seventeenth Judicial Circuit, Broward County; Thomas M. Lynch, V,

Judge; L.T. Case No. 11-654CF10A.

Jermaine Brown, Milton, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,

Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING

PER CURIAM.

Upon consideration of appellee’s motion for rehearing, we grant the

motion and withdraw this Court’s opinion dated February 28, 2018. The

attached opinion is substituted therefore.

Jermaine Brown appeals the summary denial of his motion for post-

conviction relief filed pursuant to Florida Rule of Criminal Procedure

3.850. Appellant alleged eight claims in his motion. We reverse the

portion of the post-conviction court's order that denied ground six and

remand to allow appellant an opportunity to amend this claim. We affirm,

without further discussion, the court’s summary denial of the remaining

claims.

Appellant was convicted of aggravated battery and simple battery

following a jury trial. The trial court sentenced him to a twenty year prison

term for the aggravated battery with a ten year mandatory term as a

habitual violent felony offender and time served for the simple battery.

This Court affirmed his direct appeal. Brown v. State, 133 So. 3d 941 (Fla.

4th DCA 2013).

Appellant timely filed a rule 3.850 motion raising eight grounds. In

ground six, he claimed that trial counsel was ineffective for misadvising

him to reject a favorable plea offer to a 58.4 month prison term. He alleges

that counsel told him that the case boiled down to a credibility call and

the victim’s initial “waiver of prosecution form” could serve to impeach her.

Appellant alleges further that counsel told him that the State could not

win under the circumstances and that the plea offer was excessive.

Allegedly relying on this advice, he rejected the plea offer. Alcorn v. State,

121 So. 3d 419 (Fla. 2013).

The Florida Supreme Court has held that a claim that counsel was

ineffective for advising the defendant to reject a plea offer because counsel

was confident that she could win at trial was insufficient. Morgan v. State,

991 So. 2d 835, 841 (Fla. 2008), rev’d on other grounds, Alcorn, 121 So.

3d at 419 (Fla. 2013). Morgan reasoned, “[t]he mere fact that [the

defendant] did not prevail at trial does not translate into misadvice. Some

specific deficiency on the part of counsel must be alleged.” Id. While a

specific deficiency was lacking in Morgan, here appellant alleged a specific

deficiency tied to counsel’s value of the waiver of prosecution as evidence

to impeach the victim.

However, the State is correct that appellant failed to allege two of

Alcorn’s four pleading requirements. 1 Specifically, appellant failed to

allege that the State would not have withdrawn the offer, and that the trial

court would have accepted the offer. Ramos v. State, 141 So. 3d 643, 644

(Fla. 4th DCA 2014) (“His claim is also facially insufficient under Alcorn

because he does not state that the prosecutor would not have withdrawn

the offer and that the court would have accepted it.”); Armstrong v. State,

148 So. 3d 124, 126 (Fla. 2d DCA 2014) (“Armstrong failed to allege that

the prosecutor would not have withdrawn the offer and that the court

1 Alcorn, 121 So. 3d at 430 (holding that to adequately allege prejudice when a

defendant is claiming ineffective assistance of counsel during the plea process,

the defendant must allege “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”).

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would have accepted it.”). We are bound by Alcorn and its pleading

requirements. 2

Because the pleading defects may be correctable, appellant should be

given the opportunity to do so. See Drakus v. State, 219 So. 3d 979, 982

(Fla. 1st DCA 2017) (reversing the portion of the trial court's order

summarily denying the appellant's claim, not on the merits, as found by

the trial court, but because the claim was facially insufficient); see also

Spera v. State, 971 So. 2d 754, 761 (Fla. 2007) (holding that a defendant

who files a legally insufficient 3.850 motion for failing to meet pleading

requirements should be allowed at least one opportunity to amend the

motion); Fla. R. Crim. P. 3.850(f).

Therefore, we reverse the summary denial and remand with directions

for the trial court to provide appellant sixty days to amend claim six of his

motion, if he can do so in good faith. We affirm the summary denial of the

remaining claims.

Affirmed in part, reversed in part and remanded with directions.

LEVINE, CONNER and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

2We recognize language that could suggest otherwise in Clark v. State, 238 So.

3d 281, 483 (Fla. 4th DCA 2018) and Jacques v. State, 193 So. 3d 1065 (Fla. 4th

DCA 2016). However, close review of those cases reflects that the state did not

challenge the motion as legally insufficient because of this pleading defect.

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