Armstrong v. State

• Decision Date: 24 September 2014
• Docket Number: No. 2D14–133.,2D14–133.
• Parties: Renny ARMSTRONG, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

148 So.3d 124

Renny ARMSTRONG, Appellant

v.STATE of Florida, Appellee.

No. 2D14–133.

District Court of Appeal of Florida, Second District.

Sept. 24, 2014.

Renny Armstrong, pro se.

Opinion

SILBERMAN, Judge.

Renny Armstrong appeals the summary denial of his postconviction motion filed under Florida Rule of Criminal Procedure 3.850. We affirm the denial of grounds two, three, and four without comment, but we reverse the denial of ground one and remand for further proceedings.

In 2010, Armstrong entered an open plea to burglary (count one), grand theft (count two), fleeing to elude law enforcement (count three), and driving while license suspended or revoked (count four). He was sentenced to fifteen years in prison as a prison releasee reoffender (PRR) with a fifteen-year mandatory minimum on count one, to five years in prison on count two, to fifteen years in prison on count three, and to time served on count four. He did not appeal his judgment and sentence but instead filed this timely postconviction motion.

In ground one of his motion, Armstrong claimed that his former counsel was ineffective for failing to inform him of the maximum sentence and of the possibility of a fifteen-year mandatory minimum sentence as a PRR during plea negotiations, resulting in the rejection of a favorable plea offer of forty-eight months in prison. He maintained that had he been properly advised, he would have accepted the offer of forty-eight months. He argued that although the State had not filed a notice of intent to seek PRR designation, counsel had an obligation to advise him of the possibility of such a designation to allow him to make an informed decision about the State's offer. He asserted that after he rejected the offer, the State filed a PRR notice.

In a response that was adopted and incorporated by the postconviction court, the State asserted that although Armstrong's claim is facially insufficient, it should be denied without leave to amend because he would be unable to amend it in good faith to establish prejudice. Citing Scheele v. State, 953 So.2d 782, 785 (Fla. 4th DCA 2007), the State maintained that because the trial court advised Armstrong of the maximum sentence and of the mandatory minimum as a PRR at the plea hearing, he could not rely on counsel's alleged misadvice. Although we agree Armstrong's motion is facially insufficient under Alcorn v. State, 121 So.3d 419 (Fla.2013), we disagree that Armstrong was not entitled to leave to amend ground one.

In Alcorn, the supreme court held that to establish prejudice in a claim of ineffective assistance based on misadvice resulting in the rejection of a favorable plea offer, the defendant must demonstrate 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 422 (citing Missouri v. Frye, ––– U.S. ––––, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), and Lafler v. Cooper, ––– U.S. ––––, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) ).

Armstrong failed to allege that the prosecutor would not have withdrawn the offer and that the court would have accepted it, prongs two and three of Alcorn . See Ramos v. State, 141 So.3d 643 (Fla. 4th DCA 2014). Because Armstrong's motion was pending at the time Alcorn was decided, the postconviction court was required to apply Alcorn in resolving the claim. See Odegaard v. State, 137 So.3d 505, 513 (Fla. 2d DCA 2014) (LaRose, J., concurring) (“However, recent cases suggest an expansion of the ‘pipeline’ analysis to new law that applies to postconviction claims where the resolution of the postconviction claim was still pending when the new case was decided.”); see also Barthel v. State, 882 So.2d 1054, 1055 (Fla. 2d DCA 2004) (“Because this appeal was in the ‘pipeline’ at the time Nelson [v. State, 875 So.2d 579 (Fla.2004),] became final, Barthel is entitled to the benefit of the controlling law in Nelson in effect at the time of appeal.”).

Moreover, the State applied an incorrect prejudice analysis. In the context of ineffective...