       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            KENSON LOUIMA,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-3930

                              [June 6, 2018]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; William W. Haury, Jr.,
Judge; L.T. Case No. 12-10035CF10A.

   Kenson Louima, Florida City, pro se.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

    In this appeal from a summary denial of appellant’s motion for post-
conviction relief, appellant contends that he is entitled to an evidentiary
hearing on his motion, as the record does not conclusively refute his claim.
He maintains that his attorney provided ineffective assistance by advising
him to reject a plea and misinforming him that the lesser included charge
to the crime of carjacking was grand theft. Appellant rejected the plea,
and at trial, he was convicted of a lesser included charge of robbery,
increasing his sentence far above the plea offer. We agree that the record
is insufficient to refute appellant’s claims and reverse for an evidentiary
hearing.

   Appellant was charged with carjacking. After rejecting a plea offer, he
went to trial and was convicted of the lesser included offense of robbery.
His conviction was affirmed on appeal, although the sentence was reversed
to determine whether he qualified as a prison releasee reoffender. Louima
v. State, 175 So. 3d 893, 896 (Fla. 4th DCA 2015). His PRR status was
confirmed on resentencing and affirmed on appeal.
   After his appeal was concluded, appellant filed a motion for post-
conviction relief based on ineffective assistance of counsel. He alleged that
the State had made a plea offer of five years in prison for a conviction for
grand theft. He claimed that his attorney advised rejecting the plea,
because the case for carjacking was weak and the worst that appellant
would face would be a conviction for the lesser included offense of grand
theft, which was the State’s offer. Based upon this advice, appellant
rejected the plea. He alleges that his attorney was ineffective for failing to
advise him that a lesser included offense of carjacking was robbery, for
which he was ultimately convicted and sentenced to fifteen years in prison.
He would have accepted the offer if his attorney had given him the correct
information.

    The State contends that the record conclusively refutes appellant’s
allegations. Prior to trial, the court inquired of the plea offer and
questioned appellant. The State set forth the offer, including the fact that
grand theft was a lesser included offense. The court asked the appellant
whether anyone had coerced him or promised him anything to reject the
plea (generally the question asked when a defendant is accepting a plea),
to which appellant responded “no.” The State contends that appellant
“lied” by stating that no promises were made to him.

   To make a legally sufficient claim of ineffective assistance for advising
a defendant to reject a plea offer, a defendant must show:

      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.

Alcorn v. State, 121 So. 3d 419, 430 (Fla. 2013). The plea proceeding
shows that the offer was confirmed in open court; the court would have
accepted the offer; and both the conviction and sentence would have been
less severe under the plea offer. Appellant clearly alleged that he would
have accepted the offer had he been correctly advised. Therefore, the sole
question is whether misadvice as to the lesser included offense to the main
charge under these circumstances constitutes ineffective assistance of
counsel.

   “A claim that misinformation supplied by counsel induced a defendant
to reject a favorable plea offer can constitute actionable ineffective
assistance of counsel.” Lamb v. State, 202 So. 3d 118, 120 (Fla. 5th DCA

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2016) (quoting Colon v. State, 909 So. 2d 484, 490 (Fla. 5th DCA 2005)).
A claim of misinformation must be specific as to the deficient performance
by counsel. Id. In Lamb, the alleged misadvice was the attorney’s claim
that the defendant would win at trial. Without specific deficiencies, such
as a failure to investigate, the claim was legally insufficient. Id. Where,
however, the misadvice involves the extent of penalties to which the
defendant may be subject, a sufficient claim is stated. An ineffective
assistance claim is sufficient where the attorney failed to advise the
defendant of the maximum penalty that he or she faces or for misadvising
the defendant that he or she does not qualify as a habitual offender if a
plea is rejected. See, e.g., Alcorn; Ramos v. State, 141 So. 3d 643, 644-45
(Fla. 4th DCA 2014); Jackson v. State, 987 So. 2d 233, 234 (Fla. 4th DCA
2008); Cowart v. State, 864 So. 2d 583, 585 (Fla. 3d DCA 2004).

    This case presents a claim of misadvice as to factual information which
was necessary to allow the defendant to weigh whether to accept the plea
offer. Counsel misinformed the appellant that the lesser included offense
of carjacking was grand theft, and that it carried a five-year prison
sentence. This was erroneous, as robbery is also a lesser included offense
of carjacking, and robbery carried a fifteen-year prison sentence. This
advice was not a promise by counsel of a result, but erroneous factual
information of the potential range of penalties appellant faced should he
proceed to trial. Appellant rejected the plea offer, because he was
misinformed as to his exposure based upon the lesser included offenses.
Counsel’s advice to appellant was correct insofar as he advised appellant
that he would not be convicted of carjacking; however, he was ineffective
for failing to know that appellant could be convicted of robbery, a
significantly greater crime and penalty than grand theft.

    We conclude that appellant’s allegations raised a legally sufficient claim
of ineffective assistance of counsel. The record does not conclusively refute
appellant’s motion. We reverse and remand for an evidentiary hearing.

   Reversed and remanded for further proceedings.

CIKLIN and FORST, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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