Cottle v. State, 97-1798

• Decision Date: 05 September 1997
• Docket Number: No. 97-1798,97-1798
• Citation: 700 So.2d 53
• Parties: 22 Fla. L. Weekly D2126 James L. COTTLE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 53

700 So.2d 53

22 Fla. L. Weekly D2126

James L. COTTLE, Appellant, v. STATE of Florida, Appellee.

No. 97-1798.

District Court of Appeal of Florida Fifth District.

Sept. 5, 1997.

Rehearing Denied Oct. 6, 1997.

James T. Miller of James T. Miller, P.A., Jacksonville, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Jennifer Meek, Assistant Attorney General, Daytona Beach, for Appellee.

COBB, Judge.

James L. Cottle appeals the summary denial of his motion for post conviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. On July 6, 1995, Cottle was sentenced to concurrent ten-year terms as a habitual felony offender for the third degree felonies of burglary of a motor vehicle and felony petit theft. In his 3.850 motion, Cottle raised four grounds of ineffective assistance of counsel, only one of which merits discussion. Cottle claimed that trial counsel failed to relay a plea offer, to-wit: in exchange for guilty pleas to the charged offenses, the state would not seek sentencing under the habitual offender statute. Cottle alleges that he would have accepted this plea offer.

At sentencing, the prosecutor noted that Cottle was offered a plea. Cottle at that point asserted that his attorney had not presented any plea offer. Defense counsel represented to the court that he had a note in his file which indicated that on May 2, 1995, he informed Cottle that the state would not habitualize him if he entered a plea as charged. That note also indicated that Cottle denied breaking into the car and stated that he wanted a trial.

In Young v. State, 608 So.2d 111 (Fla. 5th DCA 1992), Young was convicted of capital sexual battery after trial. Young claimed in his 3.850 motion that defense counsel did not present to him a plea offer by the state to a reduced charge and specific sentence, and further alleged that he would have accepted the plea offer and would have received a lesser sentence. This claim was deemed legally sufficient to require further proceedings. However, two of the three judges on the panel concurred specially, emphasizing that defendant must specifically prove that the trial court would have accepted the plea to the lesser charge, including the recommended sentence.

If a defendant is required to prove a fact at an evidentiary hearing, it must be alleged in the 3.850 motion. Cottle did not allege that the trial court would have accepted the plea agreement. At the time Cottle was sentenced, the court as well as the prosecutor could initiate habitual offender proceedings. See generally Young v. State, 699 So.2d 624 (Fla. 1997) (only prosecutor can initiate habitual offender proceedings, but this holding is not to be applied to cases which are final, or in pending cases where issue was not preserved). The judge could have rejected any decision by the state not to initiate habitual offender proceedings, and served the notice of intent himself.

Our court has noted that there is a strict standard of pleading and proof in these types of cases ...