ARTHUR M. RISH
v.
STATE OF FLORIDA
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A trial court's summary denial of a postconviction motion alleging ineffective assistance of counsel in rejecting a plea offer must be reversed when the attached records do not conclusively refute the defendant's allegations regarding his knowledge of potential sanctions and his attorney's advice.
[1] In evaluating ineffective assistance of counsel claims based on rejection of a plea offer, prejudice is determined by considering the circumstances as they appeared at th…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In the context of ineffective assistance resulting in the rejection of a plea offer, '[p]rejudice . . . is determined based upon a consideration of the circumstances as viewed at the time of the offer and what would have been done with proper and adequate advice.'”
Court citing Armstrong v. State and Alcorn v. State regarding the standard for evaluating prejudice in ineffective assistance claims involving rejected plea offers.
Arthur Rish rejected a seven-year plea offer and entered an open plea to the bench, resulting in a thirty-year sentence with habitual felony offender …
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
ARTHUR M. RISH,
Appellant,
v. Case No. 5D19-3103
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed February 21, 2020
3.850 Appeal from the Circuit Court for Sumter County, William H. Hallman, III, Judge.
Arthur M. Rish, Trenton, pro se.
Ashley Moody, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
Arthur M. Rish appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We previously remanded this case to allow Rish to amend his fourth ground for relief. Rish v. State, 268 So. 3d 233, 235 (Fla. 5th DCA 2019). Rish’s amended motion asserts the State had offered him a seven-year sentence without habitual felony offender (“HFO”) sanctions, but his attorney
2 directed him to reject it because the State had a “very weak” case. He contends this offer was available until June 28, 2018, when he chose to enter an open plea to the bench. He further alleges he did not know he could face HFO sanctions until he rejected the State’s seven-year offer, and his lawyer never explained this possibility to him. Rish suggests that if he knew about the HFO sanctions, he would have accepted the offer. Instead, the trial court sentenced him to thirty years in prison.
In summarily denying Rish’s fourth ground, the trial court attached the arrest affidavit, the State’s notice of intent to pursue HFO sanctions, dated June 28, 2018, and partial transcripts from the plea and sentencing hearings. These records do not conclusively refute Rish’s fourth ground for relief. See Armstrong v. State, 148 So. 3d 124, 126 (Fla. 2d DCA 2014) (“In the context of ineffective assistance resulting in the rejection of a plea offer, ‘[p]rejudice . . . is determined based upon a consideration of the circumstances as viewed at the time of the offer and what would have been done with proper and adequate advice.’” (quoting Alcorn v. State, 121 So. 3d 419, 432 (Fla. 2013))). For example, the records do not illustrate that Rish knew about HFO sanctions before the day he entered his open plea, or that he discussed the impact of those sanctions with his attorney before he rejected the State’s seven-year plea offer. Contrary to the trial court’s order, the records do not illustrate that the State’s seven-year offer related to all pending counts except the one eligible for HFO sanctions. Furthermore, the records do not rebut Rish’s sworn statement that his lawyer directed him to reject the seven-year offer due to the “very weak” nature of the State’s case.
Accordingly, we reverse and remand for the trial court to either provide attachments that conclusively refute this claim, or for an evidentiary hearing.
WALLIS, SASSO and TRAVER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Alcorn v. State, 121 So. 3d 419 (Fla. 2013)
- Rish v. State, 268 So. 3d 233 (Fla. 5th DCA 2019)