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

                                               IN THE DISTRICT COURT OF APPEAL

                                               OF FLORIDA

                                               SECOND DISTRICT



JEFFERY PHILLIPS,                  )
                                   )
           Appellant,              )
                                   )
v.                                 )                 Case No. 2D16-5034
                                   )
STATE OF FLORIDA,                  )
                                   )
           Appellee.               )
___________________________________)

Opinion filed October 18, 2017.

Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for Polk
County; John K. Stargel, Judge.

Jeffery Phillips, pro se.

Cornelius C. Demps, Assistant Attorney
General, Tampa, for Appellee.


PER CURIAM.

              Jeffery Phillips appeals the summary denial of his motion for

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

postconviction court's order fails to conclusively refute Mr. Phillips' claims for relief, we

reverse and remand for further proceedings.
                                       Background

              Mr. Phillips was serving a Florida probationary sentence for battery, lewd

or lascivious exhibition, and lewd or lascivious conduct when he pleaded guilty to and

was convicted of a new child molestation offense in Indiana. As a result, the State

sought to revoke his probation. Following an evidentiary hearing where Mr. Phillips had

counsel, the trial court revoked probation on two of the three counts. The trial court

imposed consecutive sentences of fifteen and ten years' imprisonment, ordered five

years of sexual offender probation, and designated Mr. Phillips as a sexual predator.

After an unsuccessful appeal, Mr. Phillips sought relief under rule 3.850. The

postconviction court summarily denied Mr. Phillips' amended motion. This is his appeal.

                                        Discussion

              The postconviction court's order was unaccompanied by any record

attachments and does not conclusively refute Mr. Phillips' claims of ineffective

assistance of trial counsel at the revocation stage. The State acknowledges as much.

It asks us to relinquish jurisdiction to allow the postconviction court to attach record

documents or order the postconviction court to supplement the record. See Harvester

v. State, 817 So. 2d 1048 (Fla. 2d DCA 2002). We will do neither. Harvester applies

when "this court could determine whether the [postconviction] court's initial order was

correct merely by obtaining a few more documents" or when the postconviction court's

order "references attachments that are not actually attached." Id. at 1049. Here, the

postconviction court did not reference any documents in denying three of Mr. Phillips'

four claims. We cannot conclude that supplementing the record with identifiable




                                            -2-
documents would allow us to determine the correctness of the order. Relinquishing

jurisdiction or supplementing the record are not easy fixes to dispose of this appeal.

See Peede v. State, 748 So. 2d 253, 257 (Fla. 1999) ("To uphold the trial court's

summary denial of claims raised in a 3.850 motion, the claims must be either facially

invalid or conclusively refuted by the record."); see also Swanson v. State, 825 So. 2d

507 (Fla. 1st DCA 2002) (declining to apply Harvester when the postconviction court

"did not rely upon any court documents" in denying a motion). We will, accordingly,

review the postconviction court's order based on the record before us.

              We review the summary denial of a rule 3.850 motion de novo and "must

accept the movant's factual allegations as true to the extent that they are not refuted by

the record." Jennings v. State, 123 So. 3d 1101, 1121 (Fla. 2013). We "must examine

each claim to determine if it is legally sufficient, and, if so, whether the record refutes it."

Allen v. State, 854 So. 2d 1255, 1258 (Fla. 2003). Mr. Phillips must establish each

claim by alleging specific facts. Allen, 854 So. 2d at 1259. "[U]nless the record shows

conclusively that the appellant is entitled to no relief, the order shall be reversed and the

cause remanded for an evidentiary hearing or other appropriate relief." Fla. R. App. P.

9.141(b)(2)(D).

              For each claim he asserted, Mr. Phillips must show that (1) counsel's

performance was deficient and that (2) the deficient performance prejudiced him.

Strickland v. Washington, 466 U.S. 668, 693-694 (1984). Mr. Phillips must overcome a

"strong presumption that counsel's conduct falls within the wide range of reasonable

professional assistance." Id. at 690. Moreover, Mr. Phillips "must show that there is a




                                              -3-
reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome." Id. at 694. If the claim fails on

either the deficiency or prejudice prong, the postconviction court can deny the motion.

Id. at 687.

                Mr. Phillips first asserted that counsel was ineffective by misadvising him

that he faced a fifteen-year maximum potential sentence and that he rejected the

State's fifteen-year offer based on that advice. The postconviction court denied relief,

reasoning that Mr. Phillips could not show prejudice because the trial court correctly

informed him at the beginning of the revocation hearing that he faced thirty years in

prison. However, significantly, Mr. Phillips also alleged that no offer was "on the table"

when the court informed him of the accurate potential sentence. As a result, the trial

court's colloquy did not cure counsel's alleged deficiency or eliminate any prejudice to

Mr. Phillips.

                Although counsel allegedly told him that he was facing only a potential

sentence of fifteen years' imprisonment, Mr. Phillips, upon revocation of probation, was

actually facing thirty years for two second-degree felonies. See § 800.04(7)(a), Fla.

Stat. (2002) (making lewd or lascivious exhibition a second-degree felony punishable by

a maximum of fifteen years' imprisonment); § 800.04(6)(b) (same for lewd or lascivious

conduct); Alcorn v. State, 121 So. 3d 419, 422 (Fla. 2013) (noting that misadvice

concerning the maximum sentence faced is deficient performance). As for prejudice,

Mr. Phillips adequately alleged, and the order before us does not refute, that:




                                             -4-
              (1) he . . . 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, 121 So. 3d at 422.

              As we explained in Armstrong v. State, 148 So. 3d 124 (Fla. 2d DCA

2014), when a defendant rejects a plea offer based on the alleged misadvice of counsel,

the trial court cannot cure the deficiency by later informing the defendant of the actual

sentence faced.

               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." The State incorrectly focused
               on what occurred after Armstrong rejected the plea offer;
               what happened after did not rectify counsel's failure to
               provide Armstrong with all of the information necessary to
               make an informed decision on whether to accept the offer.

Id. at 126 (quoting Alcorn, 121 So. 3d at 432) (alteration in original and citation omitted).

              Mr. Phillips cannot go back and accept the offer that he previously

rejected and that was no longer available; the damage has been done. See Wilson v.

State, 189 So. 3d 912, 913 (Fla. 2d DCA 2016) ("[E]vents occurring after [the

defendant] rejected the plea offer could not cure counsel's alleged failure to provide him

with all of the information necessary to make an informed decision concerning the

offer."). Mr. Phillips sufficiently alleged deficient performance and prejudice. The

postconviction court's order fails to refute the first claim.




                                              -5-
              In his second claim, Mr. Phillips faults counsel for failing to seek a

competency evaluation. Allegedly, Mr. Phillips informed counsel that he suffered from

mental illnesses and was experiencing symptoms that affected his ability to understand

the proceedings, notwithstanding that he was taking medications. This claim is facially

sufficient and the postconviction court's cursory comments on this claim fail to refute it.

See Thompson v. State, 88 So. 3d 312 (Fla. 4th DCA 2012); Jackson v. State, 29 So.

3d 1161 (Fla. 1st DCA 2010).

              Mr. Phillips' third claim for relief is that counsel failed to inform him of the

elements that the State needed to establish a violation of probation. Seemingly, the

postconviction court read this claim to assert counsel's failure to properly advise Mr.

Phillips of the State's burden of proof. The postconviction court reasoned that even if

the highest burden of proof applied, Mr. Phillips still would have been found in violation

and, as a result, he cannot show prejudice.

              If counsel did not explain to Mr. Phillips the elements of proving revocation

and the dire chance for his success in light of the Indiana conviction, that would likely

constitute deficient performance. See Fla. R. Crim. P. 3.171(c)(2)(B) ("Defense counsel

shall advise defendant of . . . all pertinent matters bearing on the choice of which plea to

enter and the particulars attendant upon each plea and the likely results thereof, as well

as any possible alternatives that may be open to the defendant."). And, as with his first

claim, Mr. Phillips has sufficiently alleged prejudice by asserting that he would have

accepted the State's offer had counsel informed him about the elements of a probation

violation. This claim is sufficient and unrefuted by the postconviction court.




                                             -6-
              Mr. Phillips' last claim is that counsel was ineffective for failing to seek jail

credit for the time served in an Indiana jail. The postconviction court denied this claim,

asserting simply that the award of out-of-state jail credit is discretionary and that Mr.

Phillips, therefore, cannot show prejudice. The postconviction court was correct that

awarding of such jail credit is discretionary. But that "discretion is not unbridled but is

subject to the test of reasonableness." Wombaugh v. State, 25 So. 3d 707, 709 n.2

(Fla. 2d DCA 2010). In order to allow the reviewing court to apply the test of

reasonableness, the postconviction court "must attach documentation or state the

reason for denying the claim." Id. The postconviction court did neither; we are unable

to evaluate the reasonableness of the denial of this claim.

                                         Conclusion

              We reverse the summary denial of all four claims and remand for the

postconviction court to either attach record documents conclusively refuting Mr. Phillips'

claims or hold an evidentiary hearing.

              Reversed and remanded with instructions.



LaROSE, C.J., and SILBERMAN and MORRIS, JJ., Concur.




                                             -7-
