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

                                            IN THE DISTRICT COURT OF APPEAL

                                            OF FLORIDA

                                            SECOND DISTRICT

MARTY D. ALEXANDER,                )
                                   )
           Appellant,              )
                                   )
v.                                 )                           Case No. 2D15-4075
                                   )
STATE OF FLORIDA,                  )
                                   )
           Appellee.               )
___________________________________)

Opinion filed March 30, 2016.

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

Marty D. Alexander, pro se.


PER CURIAM.


              Marty D. Alexander appeals the order summarily denying his motion filed

under Florida Rule of Criminal Procedure 3.850. We affirm the denial of grounds two

and three of Alexander's motion without further comment; we reverse the denial of

ground one and remand for further proceedings.

              Alexander entered an open no contest plea to failure to register as a sex

offender, and the trial court sentenced him to 59.7 months' imprisonment as

recommended by the guidelines and the State. In ground one of his rule 3.850 motion,

Alexander alleged that the second public defender to represent him failed to convey an
early resolution plea offer of thirty-six months' imprisonment and that if counsel had

conveyed the offer, he would have accepted it. He asserted that he learned of the offer

well after it expired, but he did not allege when the offer was supposed to have expired.

              The postconviction court correctly deemed ground one as facially

insufficient under Alcorn v. State, 121 So. 3d 419, 430 (Fla. 2013) (holding that a claim

of ineffectiveness of counsel based on the failure to convey a more favorable plea offer

requires that a defendant establish that he would have accepted the offer had counsel

advised him correctly, the prosecutor would not have withdrawn the offer, the court

would have accepted the offer, and the conviction or sentence or both would have been

less severe than the judgment and sentence that were imposed). However, it declined

to provide Alexander an opportunity to amend because it found that ground one was

refuted by the record attachments to its order. Specifically, the court found that early

resolution offers usually expire by the first status conference, but the docket showed

that counsel was not appointed attorney of record until five days after Alexander's first

status conference. Thus, the court found, counsel could not have been ineffective for

failing to convey the offer because it would have been withdrawn prior to her

representation of Alexander.

              The record attachments to the court's order are silent on the thirty-six-

month offer and when it expired. The postconviction court's statement that early

resolution plea offers usually expire by the first status conference and its finding that the

offer was withdrawn prior to counsel's representation of Alexander are not supported by

the portions of the record it attached to its order. Because the record does not




                                            -2-
conclusively refute ground one of Alexander's motion, the postconviction court erred in

denying it on the merits.

              Accordingly, we affirm the postconviction court's denial of grounds two and

three of Alexander's motion, but we reverse the denial of ground one and remand with

directions for the postconviction court to dismiss ground one and provide Alexander

sixty days to amend it to state a facially sufficient claim for relief under Alcorn. See Fla.

R. Crim. P. 3.850(f)(3) (providing that the court shall enter a nonappealable order

granting a defendant sixty days to amend any timely but facially insufficient grounds).

              Affirmed in part, reversed in part, and remanded.


KELLY, MORRIS, and LUCAS, JJ., Concur.




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