Alcorn v. State
2011 Fla. App. LEXIS 8392
Fla. Dist. Ct. App.2011Background
- This is a postconviction appeal from the denial of five claims; four were dismissed without an evidentiary hearing and one was heard evidentially.
- Claim five alleges ineffective assistance of counsel regarding a twelve-year plea offer and failure to advise about habitual felony offender status (HFO) and potential life sentence.
- Appellant asserted two subclaims: counsel failed to convey the plea offer and failed to inform him of the maximum sentence he faced.
- Count I involved sale of cocaine near a church; initial charge was first-degree felony, but the State dismissed that count and convicted on the lesser charge of sale of cocaine with an HFO-enhanced 30-year sentence; Count II received five years for possession of cocaine.
- The trial court found that counsel conveyed the twelve-year offer; appellant rejected it after believing he did not qualify as an HFO, and ultimately received a sentence not greater than what he knew could be imposed.
- The court applied Lester v. State to limit the remedy, holding no prejudice since the sentence actually imposed did not exceed the expected maximum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did counsel convey the plea offer to appellant? | Appellant claims no offer was conveyed. | Hammond contends counsel conveyed the offer, supported by notes and emails. | Yes; offer conveyed. |
| Was appellant advised of the correct maximum sentence at the time of the offer? | Appellant was not advised that he could face life as an HFO. | Counsel and State believed he did not qualify as HFO before trial. | No prejudice under Lester; sentence not greater than expected maximum. |
Key Cases Cited
- Lester v. State, 15 So.3d 728 (Fla. 4th DCA 2009) (remedy capped at expected maximum when counsel misadvises on maximum penalty)
- Lester v. State, 15 So.3d 728 (Fla. 4th DCA 2009) (see above)
- Morgan v. State, 991 So.2d 835 (Fla.2008) (need to show counsel failed to convey offer and would have accepted)
- Cottle v. State, 733 So.2d 963 (Fla.1999) (sufficiency of ineffective assistance claim based on failure to convey offer)
- Hammond v. State, 34 So.3d 58 (Fla.4th DCA 2010) (abandoned unargued claims; affirm dismissal of claim three)
- Lewis v. State, 751 So.2d 715 (Fla.5th DCA 2000) (conflicted remedy on incorrect maximum penalty guidance)
- Revell v. State, 989 So.2d 751 (Fla.2d DCA 2008) (conflicted remedy on incorrect maximum penalty guidance)
- Pennington v. State, 34 So.3d 151 (Fla.1st DCA 2010) (remanding for correct framework to assess likelihood of acceptance)
- Derrick v. State, 983 So.2d 443 (Fla.2008) (standard of review for postconviction factual findings)
- Sochor v. State, 883 So.2d 766 (Fla.2004) (standard of review for postconviction legal conclusions)
- Lonergan v. Estate of Budahazi, 669 So.2d 1062 (Fla.5th DCA 1996) (circumstantial evidence can support findings)