EDNER DELY

v.

STATE OF FLORIDA

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County; Lori A. Winstead, Judge. ATKINSON, Judge. Edner Dely appeals the order summarily dismissing his amended motion filed under Florida Rule of Criminal Procedure 3.850. We affirm the dismissal of ground two of the motion without further comment, but we reverse the dismissal of ground one and remand for further proceedings.

A jury found Dely guilty of attempted armed robbery, a second-degree felony, see §§ 777.04(4)(c), 812.13(2), Fla. Stat. (2017), and the trial court sentenced him to thirty years' imprisonment.¹ State, 121 So. 3d 419, 421-22 (Fla. 2013) (concluding that counsel's "failure to correctly inform the defendant of the maximum penalty he faced before rejecting a plea offer" constituted "deficient performance"); see also Steel v. State, 684 So. 2d 290, 291 (Fla. 4th DCA 1996) ("A claim that misinformation supplied by counsel induced a defendant to reject a favorable plea offer can constitute actionable ineffective assistance of counsel.").

Dely also argued that counsel failed to confer with¹ Although a second-degree felony is punishable by up to fifteen years' imprisonment, § 775.082(3)(d), Fla. Stat. (2017), the trial court had the discretion under certain sentencing enhancement statutes to impose a thirty-year sentence, see, e.g., § 775.084(4)(a)2, Fla. Stat. (2017) (habitual felony offender statute).

However, from the limited record before us, we cannot determine the statutory basis for the enhancement of Dely's sentence.

him about the advantages and disadvantages of the State's plea offer before trial started. Dely contended that he was prejudiced by counsel's deficient performance because, absent counsel's misinformation, he would have accepted the State's plea offer, the State would not have withdrawn the offer, the trial court would have accepted the offer, and the terms of the offer would have been less severe than the sentence imposed. See Alcorn, 121 So. 3d at 422 (holding that to show prejudice a defendant must demonstrate a reasonable probability "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he or she would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (3) the court would have accepted the offer, and (4) the conviction or sentence, or both, under the offer's terms would have been less severe than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").

The postconviction court dismissed ground one as insufficiently pled. The only rationale indicated by the postconviction court was that Dely had failed to set forth in his motion what advantages and disadvantages counsel had failed to discuss that would have led Dely to accept the plea offer. Contrary to the postconviction court's conclusion, ground one of Dely's

motion was sufficiently pled—he alleged deficient performance in that trial counsel misinformed him about the maximum sentence he faced if he was found guilty at trial, and he made the requisite allegations to support prejudice. See Alcorn, 121 So. 3d at 422.

Moreover, the factual allegations describing the ineffective assistance of counsel did effectively describe the "fail[ure] to indicate what advantages and disadvantages" might attend a choice to accept or reject the plea. According to Dely's allegations, his counsel failed to inform him of an advantage of accepting the plea— what sentence he might receive if he rejected the plea offer—by misinforming him about the extent of his sentence exposure should he go to trial. By allegedly misadvising him that his maximum sentence was far lighter than the sentence proposed by the State in its plea offer, counsel communicated to Dely, inaccurately, that accepting the plea would provide only a disadvantage with no corresponding advantage. At any rate, Dely's allegations regarding such misadvice satisfy the pleading requirements for a claim for ineffective assistance of counsel, necessitating an evidentiary hearing unless the claim is conclusively refuted by the record. See, e.g., Charles v. State, 329

So. 3d 162, 162 (Fla. 4th DCA 2021) (concluding that because "appellant alleged trial counsel failed to advise him that attempted second degree murder was a qualifying felony for first degree felony murder and that this omission caused him to reject a plea to a forty-year term for second degree murder . . . an evidentiary hearing is required"); see also Fla. R. Crim. P. 3.850(f); Guzman v. State, 329 So. 3d 806, 807 (Fla. 2d DCA 2021) ("[W]hen the circuit court fails to hold an evidentiary hearing, this court and the circuit court must accept the motion's factual allegations as true unless the record refutes them.") (citing McKinnon v. State, 221 So. 3d 1239, 1240 (Fla. 5th DCA 2017))). As such, we reverse the postconviction court's dismissal of ground one and remand for the court to either attach portions of the record that conclusively refute the claim or hold an evidentiary hearing.

Affirmed in part, reversed in part, and remanded. CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur. Opinion subject to revision prior to official publication.