                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

ANTHONY M. WAIT,                      NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D16-1167

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed March 3, 2017.

An appeal from the Circuit Court for Bay County.
James B. Fensom, Judge.

Rachael Elizabeth Bushey of O'Brien Hatfield, P.A., Tampa, for Appellant.

Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney
General, Tallahassee, for Appellee.




ROBERTS, C.J.

      Appellant, Anthony M. Wait, appeals the denial of his Florida Rule of

Criminal Procedure 3.850 motion for post-conviction relief. We affirm.

      Appellant and a co-defendant were charged (under the principal theory) with

making, possessing, throwing, or discharging of a destructive device, which carried
a mandatory minimum sentence of ten years’ imprisonment, and with transporting a

firebomb. The co-defendant went to trial first and was acquitted. After the former

co-defendant was acquitted, he agreed to testify against Appellant. Right before

Appellant’s trial began, Appellant rejected a favorable plea offer that would have

adjudicated him guilty of a felony, required him to write a letter of apology to the

victim, and would have placed him on two years of community control followed by

three years of probation. Appellant proceeded to trial and was convicted of both

crimes.

      In Appellant’s motion for post-conviction relief, he argued that his trial

counsel was ineffective for failing to properly advise him to accept the plea offer

and about all of the pertinent matters, such as the principal theory, relevant to his

case. He further argued that trial counsel’s failure to advise him about all of the

pertinent matters denied him the ability to make an informed decision about whether

or not he should accept the plea offer. The post-conviction court granted Appellant

an evidentiary hearing and made extensive findings. On appeal, Appellant now

argues that trial counsel was ineffective when she affirmatively advised him to reject

a favorable plea based upon her unreasonable expectations of success at trial. Since

Appellant did not amend his post-conviction relief motion below to say that trial

counsel affirmatively advised him to reject the plea, the State was denied the

opportunity to conclusively refute the inference that trial counsel conveyed her

                                          2
personal beliefs about Appellant’s case to Appellant. His rephrased argument on

appeal invites a different analysis from the analysis provided by the post-conviction

court and invites this Court to improperly dismiss the post-conviction court’s

findings of credibility and reweigh the evidence. We decline to accept Appellant

rephrased argument on appeal.

      During the evidentiary hearing on Appellant’s post-conviction motion,

Appellant’s trial counsel testified that she met with Appellant multiple times and

went over the evidence against him including: the discovery she received from the

State; Appellant’s entire interrogation with the law enforcement; the evidence from

the former co-defendant’s trial; the applicable case law including the principal

theory; and the former co-defendant’s deposition. Trial counsel testified that she

gave Appellant a copy of his interrogation and they discussed Appellant’s

incriminating statements. Trial counsel also testified that she believed Appellant

understood the principal theory based upon his testimony at trial, which was he did

not know about the former co-defendant’s intentions nor that there was a firebomb

in the car. The post-conviction court found trial counsel’s testimony more credible

than Appellant’s testimony with regards to the legal advice that she provided to

Appellant and found Appellant understood the principal theory based upon his trial

testimony. Trial counsel affirmatively testified that she never advised Appellant to

reject the plea offer and had advised Appellant that it was a “good plea.” Appellant

                                         3
testified that trial counsel told him to reject the plea offer, but the post-conviction

court did not find Appellant’s testimony credible. Trial counsel testified that she left

the decision up to Appellant about whether or not to accept the plea offer.

      Because the evidence does not show that trial counsel actually advised

Appellant to accept the plea, the post-conviction court had to determine whether or

not trial counsel provided Appellant with enough information to allow him to make

an informed decision about whether or not he should accept the plea. The inquiry

must focus on what trial counsel conveyed to Appellant about his chance of an

acquittal and not on what she believed. Trial counsel testified that she told Appellant

that it was “possible for him to win” and he had a “chance,” but she also said she

would not guarantee success. There is no credible record evidence, as suggested by

the dissent, that trial counsel conveyed or displayed her confidence of obtaining an

acquittal to Appellant.

      In her assessment of Appellant’s chance of an acquittal at trial, trial counsel

testified that Appellant’s case and the former co-defendant’s case possessed the

same operative facts with two exceptions. Those two exceptions are the testimony

of the former co-defendant and Appellant’s own inculpatory statements that he was

talked into going along with the former co-defendant’s plan to throw the firebomb

at the victim’s house and that he drove the former co-defendant to the house.

Appellant admitted that trial counsel went over his statements to law enforcement

                                           4
and Appellant thought those statements could be harmful if that interrogation was

played for the jury. Appellant also admitted that trial counsel went over the

deposition of the former co-defendant with him. Appellant knew that the former co-

defendant was going to testify against him and identify him as the person who threw

the firebomb. Appellant admitted that trial counsel told him that his case would

come down to credibility. The court found trial counsel’s assessment that it was

“possible” for Appellant to be acquitted was not unreasonable based upon her

perspective at the time Appellant rejected the plea offer. It also found trial counsel

was not ineffective.

      We review the post-conviction court’s factual findings for competent,

substantial evidence and its legal conclusions de novo. See Stephens v. State, 748

So. 2d 1028, 1033 (Fla. 1999). This Court will not substitute its judgment for that

of the post-conviction court on questions of fact, the credibility of witnesses, or the

weight given to the evidence. See Blanco v. State, 702 So. 2d 1250, 1252 (Fla.

1997).

      The framework for analyzing claims of ineffective assistance of counsel was

articulated in Strickland v. Washington:

      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious that
      counsel was not functioning as the “counsel” guaranteed the defendant
      by the Sixth Amendment. Second, the defendant must show that the
      deficient performance prejudiced the defense. This requires showing
      that counsel’s errors were so serious as to deprive the defendant of a
                                           5
      fair trial, a trial whose result is reliable. Unless a defendant makes both
      showings, it cannot be said that the conviction . . . resulted from a
      breakdown in the adversary process that renders the result unreliable.

466 U.S. 668, 687 (1984).

      The post-conviction court is instructed to view trial counsel’s performance

from her perspective at the time of the event in order to avoid the distorting effects

of hindsight. Id. at 689.

      The dissent is correct in stating that trial counsel had a duty to correctly advise

Appellant about his chance at trial. There is nothing in the record, other than

Appellant’s vacillating testimony during the post-conviction relief hearing that was

found not to be credible, that shows trial counsel’s assessment of a chance of or a

possibility of an acquittal was inaccurate. Actually, there is competent, substantial

evidence to support the post-conviction court’s finding that trial counsel’s

assessment that it was “possible” for Appellant to be acquitted at trial was not

unreasonable.    Trial counsel informed Appellant that his case came down to

credibility. Trial counsel was going to do her best to discredit the former co-

defendant as he was high on pills and inebriated at the time of the incident. During

the former co-defendant’s deposition, he admitted that he initially lied to law

enforcement about his presence at the scene of the crime and only told them that

Appellant threw the firebomb after law enforcement confronted him with evidence

that he was present. Additionally, the former co-defendant did not actually see

                                           6
Appellant throw the firebomb. Appellant told trial counsel that he had been coerced

into giving law enforcement the statements that he provided during his interview,

and she found him credible. If the jury had found Appellant’s testimony at trial more

credible than the other evidence presented, this case would not be before this Court.

Therefore, the dissent’s assertion that Appellant had no possibility of an acquittal is

inaccurate. There is a distinct difference between the words “possible” or “chance”

and “reasonable chance” as it is “possible” and one does have a “chance” to win the

lottery, but one does not have a “reasonable possibility” to win the lottery. Trial

counsel informed Appellant about the things that must happen in order for Appellant

to obtain an acquittal. Therefore, trial counsel’s advice was accurate.

      Trial counsel’s conveyed assessment of a “possible” acquittal with the

understanding that the jury would have to find Appellant’s testimony at trial more

credible than the other evidence, along with the explanation about how the case law

applied to all the evidence, provided Appellant all the information required by the

law to make an informed decision about whether or not he should accept the plea

offer. The record reveals that Appellant was reluctant to accept the favorable plea

offer because he would become a convicted felon by entering the plea. Trial counsel

testified that Appellant told her he did not want to be a convicted felon over “burnt

grass.” Appellant was also a nursing student who was close to finishing his

bachelor’s degree and knew he would not be able to be a licensed nurse if he was a

                                          7
convicted felon. Knowing his fate was sealed if the jury did not find his trial

testimony more credible than the other evidence, he still chose to take his case to

trial. There is nothing in the record, as suggested by the dissent, to suggest that trial

counsel did not make him aware of what he was facing if the jury found his testimony

less credible than the other evidence other than Appellant’s vacillating testimony

about what he and trial counsel discussed. If this Court were to accept the statement

that Appellant did not know what would happen if the jury did not believe his trial

testimony, then that would mean Appellant did not know he was facing a minimum

mandatory sentence of ten years in prison. The post-conviction court stated that trial

counsel did not fail to advise Appellant of that fact, and Appellant did not raise that

claim in his motion for post-conviction relief.

      In retrospect, Appellant should have taken the plea, but this Court cannot look

at the facts through the eyes of someone who did not obtain an acquittal. This Court

can only view facts as they existed at the time Appellant rejected the plea offer and

chose to go to trial. Appellant was provided the facts required by law to make an

informed decision about whether or not he should have accepted the plea offer.

Based upon the fact that Appellant knew his case came down to his credibility at

trial, his former co-defendant was going to testify that Appellant was solely

responsible for the crimes, and his own prior statements would be used against him,

it is not likely that he would have accepted the plea offer had trial counsel advised

                                           8
him as suggested by the dissent. It is more likely that Appellant would have fired

his trial counsel and sought new counsel who would have sought an acquittal rather

than urge him to accept the plea.

      Even if the post-conviction court had found trial counsel was ineffective,

Appellant cannot show prejudice. Under Strickland, Appellant had to show that trial

counsel’s performance was deficient and he was prejudiced by her performance in

order to be entitled to relief. Id. at 687. In order to show prejudice, a defendant

must show that: (1) he would have accepted the plea offer had trial counsel advised

him correctly; (2) the State would not have withdrawn the plea offer; (3) the trial

court would have accepted the plea offer; and (4) the conviction or sentence or both

would have been less severe under the plea offer than the defendant received under

the judgment and sentence that were actually imposed. Cruz-Betanzos v. State, 169

So. 3d 1236, 1237 (Fla. 1st DCA 2015).            The post-conviction court found

Appellant’s testimony that he would have accepted the plea offer unbelievable. The

post-conviction court is the court that assesses credibility and assigns the weight of

the evidence, and this Court cannot substitute its judgment for that of the post-

conviction court.    See Stephens, 748 So. 2d at 1033.         The dissent fails to

acknowledge that the post-conviction court made a finding of fact that Appellant

would not have accepted the plea offer, and that finding is supported by competent

and substantial evidence. The post-conviction court’s finding is supported by its

                                          9
credibility finding that Appellant’s testimony was not believable that he would have

accepted the plea and trial counsel’s testimony about her conversations with

Appellant and his reluctance to become a convicted felon.

      AFFIRMED.

WOLF, J., CONCURS; B.L. THOMAS, J., DISSENTS with opinion.




                                        10
B.L.THOMAS, J., DISSENTING.

      I respectfully dissent, because Appellant established that he was entitled to

relief under Lafler v. State, 132 S. Ct. 1376 (2012), and Alcorn v. State, 121 So. 3d

419 (Fla. 2013). Defense counsel provided ineffective assistance to Appellant by

affirmatively advising him that he had a “possibility” of obtaining an acquittal, when

under the “facts and circumstances” of this case, Appellant had a zero possibility of

obtaining an acquittal. Cf. Morgan v. State, 991 So. 2d 835, 841 (Fla. 2008)

(affirming denial of evidentiary hearing where, although defense counsel informed

client he should reject plea offer, and defendant was convicted and received harsher

sentence, defendant failed to allege that “counsel’s assessment of the chances of

success at trial was unreasonable under the facts and circumstances of this case”),

receded from on other grounds by Alcorn, 121 So. 3d at 419. Defense counsel, who

had never previously tried a criminal case in Florida, failed to properly inform

Appellant that he had no reasonable alternative to accepting the State’s highly

advantageous plea offer, which required no incarceration. Defense counsel misled

Appellant, who, thinking he could be acquitted, was predictably convicted and

received a mandatory ten-year prison term.

      Defense counsel’s unjustified confidence regarding the likely outcome at trial

misadvised Appellant at a critical stage of the criminal prosecution. Thus, counsel




                                         11
provided ineffective assistance, in violation of the Sixth Amendment to the United

States Constitution, under Strickland v. Washington, 466 U.S. 668 (1984).

      Based on the evidence, including Appellant’s motive and his inculpatory

statements to the police, no reasonable jury would have acquitted Appellant. This

was not a case where identification was at issue, where the State’s testifying witness

was cooperating in order to hope to receive a more favorable plea offer, or where the

occurrence of the crime was in question. Instead, this was a case where any

reasonable defense counsel would have warned Appellant in the most vigorous

manner possible that a jury would find Appellant guilty.

      When an attorney negligently advises a client that they may have a possibility

for an acquittal, when in fact there is no reasonable possibility for such a result,

ineffective assistance is demonstrated if the defendant testifies that he or she would

have accepted the plea offer with professionally accurate advice. See Hauter v.

State, 42 Fla. L. Weekly D65 (Fla. 5th DCA Dec. 22, 2016) (citing Lamb v. State,

202 So. 3d 118, 120 (Fla. 5th DCA 2016), for proposition that “‘[a] claim that

misinformation supplied by counsel induced a defendant to reject a favorable plea

offer’” can state a facially valid postconviction claim, and that defendant must allege

that “counsel’s assessment of the chances of success at trial was unreasonable”

(quoting Colon v. State, 909 So. 2d 484, 490 (Fla. 5th DCA 2005))); Paul v. State,

198 So. 3d 999, 1000 (Fla. 4th DCA 2016) (ordering hearing on claim, based in part

                                          12
on defendant’s claim that counsel failed to inform him of maximum sentence or

“why case was not defensible”).         Here, despite defense counsel’s unrebutted

testimony that she informed Appellant the plea offer was a good offer, she failed to

advise Appellant to forego a trial that was certain to result in a conviction and

mandatory prison term. Instead of enabling Appellant’s wishful thinking that he

(and counsel) might prevail at trial, defense counsel had an affirmative obligation to

do just the opposite – encourage Appellant to accept the plea offer in the firmest

manner, consistent with counsel’s obligation to zealously represent Appellant at

trial.

         Although the trial court rejected the credibility of Appellant’s self-serving

testimony that counsel had not informed him that his pretrial statements were

inculpatory, 1 even this finding supports rather than defeats Appellant’s argument, in

part, at least, as it goes to the reality faced by defense counsel and Appellant:

Appellant’s own words to law enforcement were sure to inculpate him before the

jury, providing all the more reason to accept the plea offer.

         Furthermore, there are two fundamental and salient facts here which are not

in dispute regarding the evidence Appellant faced at trial. First, there was no dispute



1
  The trial court conducted a prompt and comprehensive evidentiary hearing, and
while I disagree with the legal conclusions of the trial court’s order, based on the
facts adduced at the hearing in a light most favorable to the order, I commend the
trial court’s efforts to ensure Appellant’s claim was thoroughly and timely evaluated.
                                            13
that the person testifying against Appellant, who had previously been charged and

acquitted, was going to identify Appellant as the person who was the actual

perpetrator in firebombing the doctor’s home. And second, this same witness would

credibly establish, along with other evidence, that no one except Appellant had any

motive to commit this violent crime, because Appellant thought the victim, a doctor,

had provided negligent medical care to Appellant’s grandmother. And the acquittal

of the other party who testified against Appellant was not a fact or circumstance that

favored Appellant.     The other party did not give similar inculpatory pretrial

statements and did not have Appellant’s motive for committing the crime. Even if

there was evidence that the other party may have been a principal to the offense, this

fact did not exculpate Appellant, but only gave the jury reason to think Appellant

was the actual perpetrator who relied on the other party’s experience with explosives

to help carry out the crime.

      Despite these monumental disadvantages, however, defense counsel advised

Appellant that there was a real possibility of success:

             I advised him that it is possible that he can win. I advised him
      also that he could take the plea. I would never go to trial knowing the
      client would lose. If he thought he had a chance, if I thought no way
      you had a chance, I would get off the case before I tried the case.

            But if he was confident that he could win and I was confident
      that he could win, I was confident that we could at least cast reasonable
      doubt, then yes, I’d say there is a chance you can win. I would never
      guarantee success, ever. But, yes, I gave him a chance that, I did say
      there was a chance he could win.
                                         14
(Emphasis added.) This was not trial strategy, but unjustified confidence and a

failure to properly advise Appellant that he had to accept the plea if he wanted to

avoid a sure conviction and ten years in state prison. Defense counsel’s illusory

evaluation of success was not based on any reasonable view of the evidence, but

only on mutually reinforcing false hopes between defense counsel and Appellant.

Defense counsel’s performance was therefore deficient by misleading Appellant into

a false expectation of success at trial, despite the overwhelming evidence of

Appellant’s guilt.

      The fact that Appellant, a person not trained in the law, thought he might

obtain an acquittal is not dispositive, when the deficient performance is defense

counsel’s failure to warn of the adverse consequences Appellant was certain to suffer

should he go to trial. It is only speculation to assume Appellant would have

continued to obstinately refuse to accept such a generous plea offer, given the State’s

evidence, as it was defense counsel’s professional obligation, as counsel, to properly

advise Appellant, which would have removed all doubt as to whether Appellant

would have accepted a plea offer that no rational defendant would refuse. Cf. Munoz

v. S. Miami Hosp., Inc., 764 So. 2d 854, 857 (Fla. 3d DCA 2000) (stating that “[i]t

simply flies in the face of common sense” and indulges in improper speculation to

uphold summary judgment based on physician’s failure to warn other physician of

potential adverse medical consequences “conveyed with due concern and gravity by
                                          15
professional colleagues,” even where physician, who was not warned, testified he

received similar information from lay person). Here, it “flies in the face of common

sense” to speculate that Appellant would have chosen a conviction and ten years’

imprisonment, rather than plead guilty but avoid incarceration. Appellant, like all

criminal defendants, must rely on the legal advice of an attorney to “convey[] with

due concern and gravity” the catastrophic consequences that will follow a reckless

decision to turn down the only viable option of a favorable and lenient plea

settlement when faced with a certain conviction and lengthy incarceration. Id.

      In order to determine if a defendant was prejudiced by trial counsel’s

deficiencies during a plea offer, a defendant must show that: (1) he would have

accepted the plea offer had trial counsel advised him correctly; (2) the State would

not have withdrawn the plea offer; (3) the trial court would have accepted the plea

offer; and (4) the conviction or sentence or both would have been less severe under

the plea offer than the defendant received under the judgment and sentence that were

actually imposed. Cruz-Betanzos v. State, 169 So. 3d 1236, 1237 (Fla. 1st DCA

2015). All criteria here are met. Because of defense counsel’s ineffective legal

advice, Appellant was denied the opportunity to make an informed choice, and the

record shows that had he been properly informed, in blunt, no-uncertain terms that

he was going to be convicted and would be required to serve a ten-year prison term,

he would have chosen to accept the plea offer. While the court found that Appellant

                                        16
did not want to accept the plea so he could continue with his nursing education, a

guilty verdict, conviction and a ten-year prison term were obviously going to

preclude that option. Furthermore, there was no dispute that the plea remained in

effect or that the trial court would have accepted the plea.

      A criminal trial is not the occasion for hoping for a miracle at a client’s

expense. Had defense counsel properly advised Appellant, when on the day of trial

counsel put on the record that a plea offer was made and rejected, then the

ineffectiveness claim could be rejected. But this would require that defense counsel

inform the court, and Appellant, that counsel had urged him to accept the plea,

advised that he was highly likely to be convicted because the evidence was

overwhelming, and that Appellant’s rejection of the very reasonable plea offer was

against defense counsel’s clear advice to the contrary.

      Defense counsel acknowledged that, had she thought there was no possible

chance for an acquittal (which there wasn’t, absent a jury pardon), she would have

declined to represent Appellant at trial. But that is not the proper response here.

Instead, what defense counsel should have told Appellant, in so many words, was:

“You have no reasonable chance of winning this trial, and if you turn down the plea,

you are choosing a prison sentence over a sentence of house arrest and probation, so

I must urge you in the most strenuous terms possible to accept the plea, and if you

do not, I must establish a record that your decision is against my legal advice.”

                                          17
Whether defense counsel would then be allowed to withdraw from representing

Appellant is not relevant here. And had Appellant, in this scenario, demanded

defense counsel withdraw, this issue would not be before us here.

      The final question here is what precise remedy should be provided. The State

had offered a plea of no incarceration, but community supervision of five years, to

include two years of community control. If Appellant was granted relief, I would

have recommended the trial court consider the analysis and commentary of Lafler:

      The specific injury suffered by defendants who decline a plea offer as
      a result of ineffective assistance of counsel and then receive a greater
      sentence as a result of trial can come in at least one of two forms. In
      some cases, the sole advantage a defendant would have received under
      the plea is a lesser sentence. This is typically the case when the charges
      that would have been admitted as part of the plea bargain are the same
      as the charges the defendant was convicted of after trial. In this situation
      the court may conduct an evidentiary hearing to determine whether the
      defendant has shown a reasonable probability that but for counsel's
      errors he would have accepted the plea. If the showing is made, the
      court may exercise discretion in determining whether the defendant
      should receive the term of imprisonment the government offered in the
      plea, the sentence he received at trial, or something in between.

      In some situations it may be that resentencing alone will not be full
      redress for the constitutional injury. If, for example, an offer was for a
      guilty plea to a count or counts less serious than the ones for which a
      defendant was convicted after trial, or if a mandatory sentence confines
      a judge's sentencing discretion after trial, a resentencing based on the
      conviction at trial may not suffice. See, e.g., Williams, 571 F.3d, at
      1088; Riggs v. Fairman, 399 F.3d 1179, 1181 (C.A.9 2005). In these
      circumstances, the proper exercise of discretion to remedy the
      constitutional injury may be to require the prosecution to reoffer the
      plea proposal. Once this has occurred, the judge can then exercise
      discretion in deciding whether to vacate the conviction from trial and
      accept the plea or leave the conviction undisturbed.
                                          18
      In implementing a remedy in both of these situations, the trial court
      must weigh various factors; and the boundaries of proper discretion
      need not be defined here. Principles elaborated over time in decisions
      of state and federal courts, and in statutes and rules, will serve to give
      more complete guidance as to the factors that should bear upon the
      exercise of the judge's discretion. At this point, however, it suffices to
      note two considerations that are of relevance.

      First, a court may take account of a defendant's earlier expressed
      willingness, or unwillingness, to accept responsibility for his or her
      actions. Second, it is not necessary here to decide as a constitutional
      rule that a judge is required to prescind (that is to say disregard) any
      information concerning the crime that was discovered after the plea
      offer was made. The time continuum makes it difficult to restore the
      defendant and the prosecution to the precise positions they occupied
      prior to the rejection of the plea offer, but that baseline can be consulted
      in finding a remedy that does not require the prosecution to incur the
      expense of conducting a new trial.

Lafler v. Cooper, 132 S. Ct. at 1389.

      Here, this case appears to qualify for the second category described in Lafler,

because Appellant was convicted of an offense requiring imposition of a mandatory

prison term. Thus, the most practical remedy would be to order the state attorney to

reoffer the original plea offer, allow Appellant to accept a modified plea offer which

includes a guilty plea to both offenses, and credit for time served in state prison up

to the date this case is resolved, and issue an order vacating the conviction resulting

from the trial. Alcorn, 121 So. 3d at 428-29. This was a very serious crime, and

Appellant’s legal and moral culpability is not in doubt. The prison sentence he has

served is appropriate punishment for this violent offense, and by including it in a

                                          19
modified postconviction plea offer, the interests of justice and the recognition of the

“considerable resources the State properly invested in [Appellant’s] prosecution”

would be properly accommodated. Id. at 428. As recognized in Lafler, the courts

which face these types of claims must be allowed latitude in crafting remedies.

      I would reverse for the reasons stated above for further proceedings. Thus, I

respectfully dissent.




                                          20
