DEANDREW T. SCOTT

v.

STATE OF FLORIDA

1 We have taken judicial notice of our records to view the Indictment, as it was not attached to the order summarily denying relief but is contained in the record from Appellant’s plenary appeal. The absence of any attachments refuting Appellant’s legally sufficient claim requires reversal. See O’Callaghan v. State, 461 So. 2d 1354 (Fla. 1984) (holding that when a the special verdict form. Specifically, Count II of the Indictment charged Appellant with the “attempted second-degree murder (with a firearm) (F1- L10)” of Mr. Moses. It alleged that Appellant “by an act imminently dangerous to another, and evincing a depraved mind regardless of human life, attempt[ed] to kill [Mr. Moses], by aiding, abetting, counseling, or otherwise procuring other individuals driven to the scene by [Appellant] to discharge a firearm.” The jury found him guilty of Count II “as charged in the Indictment.” In the special verdict form, though, the jury found “beyond a reasonable doubt that during the commission of the crime, [Appellant] did personally carry, display, use, threaten to use, or attempt to use a firearm.” Appellant, although charged with a second-degree felony, was found guilty of a first-degree felony. For that to have occurred, the second-degree felony of attempted second-degree murder had to have been reclassified due to the firearm.2 Reclassification must occur within strict parameters. postconviction claim is properly raised, defendant is entitled to evidentiary hearing unless record conclusively shows no entitlement to relief).

2 Second-degree murder is a first-degree felony. § 782.04(2), Fla. Stat. (2014). The offense of criminal attempt is ranked one level below the completed offense. § 777.04(4)(a), Fla. Stat. (2014). Thus, before reclassification, Appellant’s charge was that of a second-degree felony. The State then appears to have pursued reclassification due to the firearm, which, if properly done, would have reclassified the second-degree felony to a first-degree felony. See § 775.087(1), Fla. Stat. (2014) (“[W]henever a person is charged with a felony . . . and during the commission of such felony The proper pursuit of an enhanced mandatory sentence requires that the State “allege the grounds for enhancement in the charging document, and the jury must make factual findings regarding those grounds.” Bienaime v. State, 213 So. 3d 927, 929 (Fla. 4th DCA 2017) (citation omitted). This principle also applies to reclassification under section 775.087(1). See, e.g., Green v. State, 18 So. 3d 656 (Fla. 2d DCA 2009). Importantly, a jury’s finding is not sufficient to support reclassification in the absence of proper language in the Indictment. See Bienaime, 213 So. 3d at 929 (“The state’s failure to allege grounds for enhancement in the charging document cannot be cured by a jury’s factual findings.” (citation omitted)). This is the point where it appears the reclassification effort may have run aground—a factual matter to be determined by the postconviction court on remand along with consideration of trial counsel’s effectiveness in addressing the matter. Thus, we reverse the summary denial of ground four and remand to the postconviction court to address it on its merits at an evidentiary hearing or to attach portions of the record conclusively showing Appellant is not entitled to relief on this claim. See O’Callaghan v. State, 461 So. 2d 1354 (Fla. 1984) the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm . . . the felony for which the person is charged shall be reclassified . . . in the case of a felony of the second degree, to a felony of the first degree.”). (holding that when a postconviction claim is properly raised, defendant is entitled to evidentiary hearing unless record conclusively shows no entitlement to relief). We turn now to ground six, in which Appellant argues that his trial counsel was ineffective for misadvising about his right to testify and not preparing him to testify. According to Appellant, he was not present when the shooting occurred and informed his attorney of such, yet his counsel advised him not to testify anyway, telling him that if he were to testify, his criminal history would be presented. Appellant “understood this to mean that the substance of his prior offenses would be learned by the jury if he testified,” and his attorney never corrected that belief. He alleged that if he had testified, the outcome of the case would have been different because he would have told the jury that he was at home while the crimes were being committed. He noted that one of his roommates, Anthony Johnson, was home with him at the time, but Mr. Johnson refused to testify at Appellant’s trial by pleading the Fifth, so Appellant had no way of presenting this alibi defense other than by testifying himself. In order to waive the right to testify, “a defendant must make a knowing, voluntary, and intelligent waiver.” Morris v. State, 931 So. 2d 821, 833 (Fla. 2006) (citation omitted). “[M]isadvice concerning the decision of a criminal defendant whether or not to testify in his own defense [raises] a potentially colorable basis for finding ineffective assistance of counsel.” Loudermilk v. State, 106 So. 3d 959, 961 (Fla. 4th DCA 2013) (citation omitted). Conversely though, when a defendant misunderstands his attorney’s advice, his claim fails the first Strickland3 prong. State v. Taylor, 738 So. 2d 988 (Fla. 2d DCA 1999); see also Demontalvo v. Dixon, Case No. 3:20-cv-5948- MCR/MJF, 2022 WL 2820755, *9 (N.D. Fla. May 13, 2022). Hence, when a defendant alleges that his trial counsel advised him that his prior convictions would “come up,” and the defendant misunderstands that to mean that the “exact nature of his offenses would be presented to the jury,” the defendant’s postconviction claim fails the first Strickland prong. Messer v. McNeil, No. 3:07-cv-177/MCR/EMT, 2008 WL 754667, *7–*9 (N.D. Fla. 2008). Under such circumstances, a defendant “fail[s] to show that counsel deprived him of the ability to knowingly decide whether or not to testify . . . .” Id. at *9. Here, the fatal flaw in Appellant’s claim is that, unlike in Loudermilk, he does not allege that his trial counsel misadvised him about the State’s ability

3 Strickland v. Washington, 466 U.S. 668 (1984) (holding that for ineffective assistance of counsel claim to be successful, claimant must first identify the act or omission that is shown to be outside the broad range of reasonably competent performance, and second, the claimant must demonstrate that this substantial deficiency so affected the fairness and reliability of the trial that it undermines confidence in its outcome). to introduce evidence of his prior record. Rather, his claim is that he misunderstood counsel’s advice, making his claim far more similar to Taylor, Demontalvo, and Messer. Messer in particular involved an identical claim. Both in Messer and here, the defendants alleged that their trial attorneys advised them that the State could bring in evidence of their prior criminal history, and both defendants wrongly interpreted that to mean that the State could present the underlying facts of those cases. Id. at *4, *7. The Messer court held that this claim failed the first Strickland prong since the defendant failed to demonstrate any deficient performance on the part of his attorney. Id. at *9. We agree with the sound logic of Messer and hold that because Appellant failed to allege that his attorney incorrectly advised him, his claim fails the first Strickland prong. Accordingly, the postconviction court’s summary denial of ground six is affirmed. AFFIRMED in part; REVERSED in part; REMANDED for further proceedings. COHEN and SASSO, JJ., concur.