               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                           IN THE DISTRICT COURT OF APPEAL
                                           OF FLORIDA
                                           SECOND DISTRICT



MICHAEL RAY MITCHELL,            )
                                 )
           Appellant,            )
                                 )
v.                               )                    Case No.    2D15-4628
                                 )
STATE OF FLORIDA,                )
                                 )
           Appellee.             )
________________________________ )

Opinion filed August 17, 2016.

Appeal pursuant to Fla. R. App. P.
9.141(b) from the Circuit Court for Polk
County; J. Dale Durrance, Judge.

Michael Ray Mitchell, pro se.



KELLY, Judge.


             Michael Mitchell appeals from the order summarily denying his motion for

postconviction relief filed under Florida Rule of Criminal Procedure 3.850. Because

Mitchell's claim that his defense counsel failed to convey a plea offer was not refuted by

the record, we reverse for an evidentiary hearing.

             Mitchell was originally charged in count I with leaving the scene of a crash

involving death and in count II with driving with a suspended license. The State later
amended the information to add count III, vehicular homicide. Mitchell entered an open

guilty plea to counts I and II in exchange for the nolle prosequi of count III. The trial

court sentenced him to fifteen years in prison followed by five years of probation.

               In his motion, Mitchell claimed that a response to his public records

request from the State Attorney's office revealed a plea offer that was never presented

to him. The offer, dated February 13, 2012, was for 112.3 months in prison followed by

five years of probation. A month after the date of the offer, on March 15, 2012, the

State amended the information to add count III. Mitchell alleges that, had he known of

the 112.3-month offer, he would have accepted it before the State amended the

information to add the additional charge. He claims that he was prejudiced by his

counsel's failure to present the offer because he entered an open plea after the

information was amended and received a sentence that was six years greater than the

original plea offer.

               The State's response to the motion argued that the motion was legally

insufficient because it did not allege that the prosecutor would not have withdrawn the

offer. See Alcorn v. State, 121 So. 3d 419 (Fla. 2013) (holding that the defendant must

allege in his motion for postconviction relief that the State would not have withdrawn its

offer and that the court would have accepted it). The trial court allowed Mitchell to

amend his motion. The amended motion contained the following notation:

               *The State would not have withdrawn the plea as they
               clearly did not put a plea expiration date on page (3) of
               Exhibit "C"; and had defendant been presented the plea he
               would have signed it "prior" to the State's "later" amendment
               to his Information; therefore, no amendment to the
               information would have ever occurred.




                                            -2-
              In spite of this amendment, the trial court's order denying relief noted that

Mitchell failed to allege that the State would not have withdrawn its offer. The court

found that the State would have withdrawn the offer when it amended the information.

              When no evidentiary hearing is held, the appellate court must accept the

defendant's factual allegations to the extent they are not refuted by the record. Peede

v. State, 748 So. 2d 253, 257 (Fla. 1999). Here, Mitchell alleged that he was never

presented with the State's 112.3-month offer. "A trial counsel's failure to convey a plea

offer can constitute ineffective assistance of counsel." Gallant v. State, 898 So. 2d

1156, 1157 (Fla. 2d DCA 2005).

              To show prejudice from ineffective assistance of counsel
              where a plea offer has lapsed or been rejected because of
              counsel's deficient performance, defendants must
              demonstrate a reasonable probability they would have
              accepted the earlier plea offer had they been afforded
              effective assistance of counsel. Defendants must also
              demonstrate a reasonable probability the plea would have
              been entered without the prosecution canceling it or the trial
              court refusing to accept it, if they had the authority to
              exercise that discretion under state law. To establish
              prejudice in this instance, it is necessary to show a
              reasonable probability that the end result of the criminal
              process would have been more favorable by reason of a
              plea to a lesser charge or a sentence of less prison time.

Missouri v. Frye, 132 S. Ct. 1399, 1409 (2012).

              In Florida, trial courts and prosecutors have the discretion to withdraw a

plea offer. Alcorn, 121 So. 3d at 430. See Fla. R. Crim. P. 3.172(g) ("No plea offer or

negotiation is binding until it is accepted by the trial judge formally after making all the

inquiries, advisements, and determinations required by this rule. Until that time, it may

be withdrawn by either party without any necessary justification."). Therefore, the

defendant must allege and prove that there is a reasonable possibility that the



                                             -3-
prosecutor would not have withdrawn the plea offer and that the trial court would have

accepted it. Alcorn, 121 So. 3d at 430.

              In this case, Mitchell alleged that he would have accepted the 112.3-

month offer had counsel advised him of it; that there was a reasonable probability the

prosecutor would not have withdrawn the offer if Mitchell accepted it in the month before

the information was amended; and that the court would have accepted his plea,

because the court accepted his later plea. Mitchell alleged that he was prejudiced

because the plea would have resulted in a lesser sentence than was ultimately

imposed. The State did not refute the allegation that Mitchell would have accepted the

first plea offer before the information was amended.

              Because Mitchell's motion was legally sufficient and was not refuted by the

record, an evidentiary hearing was required. See Whitten v. State, 841 So. 2d 578, 579

(Fla. 2d DCA 2003) (holding that the defendant was entitled to an evidentiary hearing on

his postconviction claim that counsel was ineffective for failing to convey a plea offer

where the record did not refute the defendant's claims). Accordingly, we reverse the

order summarily denying Mitchell's motion and remand for further proceedings.

              Reversed and remanded.



NORTHCUTT and KHOUZAM, JJ., Concur.




                                            -4-
