       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           JERMAINE BROWN,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-2428

                            [February 28, 2018]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Thomas M. Lynch, V,
Judge; L.T. Case No. 11-654CF10A.

   Jermaine Brown, Milton, pro se.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   Jermaine Brown appeals an order summarily denying his Florida Rule
of Criminal Procedure 3.850 motion for post-conviction relief alleging
ineffective assistance of counsel. We affirm in part and reverse and
remand in part for further review of appellant’s claim that he rejected a
favorable plea offer based on counsel’s advice regarding the strength of the
State’s case and the strength of the evidence to impeach the victim.

    Appellant was convicted of aggravated battery and simple battery
following a jury trial. The trial court sentenced him to a twenty year prison
term for the aggravated battery with a ten year mandatory term as a
habitual violent felony offender and time served for the simple battery.
This Court affirmed his direct appeal. Brown v. State, 133 So. 3d 941 (Fla.
4th DCA 2013).

   Appellant timely filed a rule 3.850 motion raising eight grounds. In
ground six, he claimed that trial counsel was ineffective for misadvising
him to reject a favorable plea offer to a 58.4 month prison term. He alleges
counsel told him that the case boiled down to a credibility call and the
victim’s initial “waiver of prosecution form” could serve to impeach her.
Appellant further alleges counsel told him that the State could not win
under the circumstances and that the plea offer was excessive. Relying on
this advice, he rejected the plea offer.

   The record confirms that appellant rejected this plea offer twice, once
at a pretrial status hearing and again on the morning of voir dire. The
record also shows that during opening comments, defense counsel told the
jury that it would hear from the victim that she made prior inconsistent
statements relative to the allegations.

   The Florida Supreme Court has held that a claim that counsel was
ineffective for advising the defendant to reject a plea offer because counsel
was confident that she could win at trial was insufficient. Morgan v. State,
991 So. 2d 835, 841 (Fla. 2008), rev’d on other grounds, Alcorn v. State,
121 So. 3d 419, 419 (Fla. 2013). Morgan reasoned, “[t]he mere fact that
[the defendant] did not prevail at trial does not translate into misadvice.
Some specific deficiency on the part of counsel must be alleged.” Id.

    A specific deficiency was lacking in Morgan, where the movant did not
allege that “counsel’s assessment of the chances of success at trial was
unreasonable under the facts and circumstances of this case or that
counsel had not investigated or otherwise was not familiar with the case.”
991 So. 2d at 841. Here, appellant alleged a specific deficiency tied to
counsel’s value of the waiver of prosecution as evidence to impeach the
victim, and the record reflects that the plea was available at least until voir
dire began. Clark v. State, No. 4D17-680, 2018 WL 355407, at *2 (Fla. 4th
DCA Jan. 10, 2018) (citing Jacques v. State, 193 So. 3d 1065 (Fla. 4th DCA
2016) (“[T]here was no indication that the prosecutor would have
withdrawn the plea or the trial court would have rejected it.”)).

   When evaluating a claim of ineffective assistance resulting in a rejected
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.” Alcorn, 121 So. 3d at 419,
432; see also Phillips v. State, 229 So. 3d 426 (Fla. 2d DCA 2017);
Armstrong v. State, 148 So. 3d 124, 126 (Fla. 2d DCA 2014). The “waiver
of prosecution” was not mentioned during the trial. The trial transcript
suggests that coercion issues may have arisen surrounding the waiver,
but it does not reflect when those issues arose, whether counsel addressed
the impact of the coercion claims with appellant, or whether counsel could
or should have known of them when advising appellant.



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   We find appellant's claim is sufficient and not refuted by the record.
Accordingly, we reverse the trial court’s summary denial of the claim and
remand for it to either attach records conclusively refuting appellant’s
claim, or in the alternative, to hold an evidentiary hearing. We affirm the
summary denial of appellant’s remaining grounds without further
discussion.

   Affirmed in part, reversed in part and remanded.

LEVINE, CONNER and KLINGENSMITH, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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