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

                                           IN THE DISTRICT COURT OF APPEAL

                                           OF FLORIDA

                                           SECOND DISTRICT

EDWARD KEITH STODDARD,             )
DOC #R11760,                       )
                                   )
           Appellant,              )
                                   )
v.                                 )                          Case No. 2D17-5103
                                   )
STATE OF FLORIDA,                  )
                                   )
           Appellee.               )
___________________________________)

Opinion filed August 22, 2018.

Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Pasco County; Susan G. Barthle, Judge.

Edward Keith Stoddard, pro se.



PER CURIAM.


             Edward Stoddard appeals the order summarily denying his motion filed

under Florida Rule of Criminal Procedure 3.850. We affirm without comment the

portions of the order that summarily deny grounds two through ten of Mr. Stoddard's

motion, but we reverse the portion of the order that summarily denies ground one and

remand for further proceedings.

             The State charged Mr. Stoddard with first-degree murder after he shot a

man in 2008. A jury found him guilty of second-degree murder, and the trial court
sentenced him as a prison releasee reoffender to life imprisonment with a twenty-five-

year minimum mandatory term for his discharge of a firearm. Mr. Stoddard appealed

his judgment and sentence, and this court reversed because the manslaughter

instruction given to his jury constituted fundamental error under State v. Montgomery,

39 So. 3d 252, 259 (Fla. 2010). Stoddard v. State, 100 So. 3d 18, 19 (Fla. 2d DCA

2011). A second jury found Mr. Stoddard guilty of second-degree murder, and the trial

court again sentenced him as a prison releasee reoffender to life imprisonment with a

twenty-five-year minimum mandatory term. Mr. Stoddard appealed that judgment and

sentence, which this court affirmed without a written opinion. Stoddard v. State, 200 So.

3d 68 (Fla. 2d DCA 2016) (table decision).

              Mr. Stoddard then filed a motion under rule 3.850, asserting in ground one

that his trial counsel gave him incorrect advice. He claims that his attorney advised him

that the State had to "refile" a notice of intent to seek a prison releasee reoffender

sentence for his second trial and that because the State failed to do so, the trial court

had discretion to impose a sentence less than life imprisonment if he was again

convicted of second-degree murder.1 Mr. Stoddard further asserts that he relied on this

advice when he rejected the State's plea offer of imprisonment for twenty-five years.

The postconviction court did not address the legal sufficiency of this claim, instead


              1Unlike the violent career criminal and habitual offender sentencing
enhancements in section 775.084, Florida Statutes (2007), section 775.082(9) does not
require the State to provide written notice before seeking a prison releasee reoffender
sentence. See Akers v. State, 890 So. 2d 1257, 1259 (Fla. 5th DCA 2005) ("We have
analyzed the Prison Releasee Reoffender Act and have found no requirement therein
that a defendant be given written notice of the state's intent to seek enhanced penalties
as a prison releasee reoffender."). Thus, Mr. Stoddard’s claim is that his trial counsel
advised him that the State had to "refile" a notice that, in fact, it never had to file in the
first place.



                                             -2-
ruling that it was conclusively refuted by the State's June 9, 2008, notice that Mr.

Stoddard qualified as a prison releasee reoffender, the prison releasee reoffender

sentence imposed after his first conviction, and trial counsel's statements at the second

sentencing hearing that the postconviction court interpreted as an agreement that Mr.

Stoddard qualified as a prison releasee reoffender.

              While the postconviction court's attachments reflect that Mr. Stoddard was

aware that he qualified as a prison releasee reoffender, the attachments do not

conclusively refute Mr. Stoddard's claim that his trial counsel incorrectly advised him

before his retrial that if he was again convicted of second-degree murder, the court

would have discretion to impose a sentence less than life imprisonment because the

State did not "refile" a notice of intent to seek prison releasee reoffender sentencing.

We note that in the context of a plea agreement, prejudice "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 v. State, 121 So. 3d 419,

432 (Fla. 2013).

              However, we also note that although Mr. Stoddard pleaded facts that

support a cognizable claim for relief, see Steel v. State, 684 So. 2d 290, 291 (Fla. 4th

DCA 1996) ("A claim that misinformation supplied by counsel induced a defendant to

reject a favorable plea offer can constitute actionable ineffective assistance of

counsel."), he did not sufficiently plead that he was prejudiced by his counsel's advice

pursuant to the requirements set forth in Alcorn. 121 So. 3d at 430. Because the

postconviction court did not address the legal sufficiency of Mr. Stoddard's motion but

instead ruled that this claim was conclusively refuted by the record, it did not enter a




                                            -3-
nonfinal order granting Mr. Stoddard sixty days to amend this insufficiently pleaded

claim. See Fla. R. Crim. P. 3.850(f)(2) ("If the motion is insufficient on its face, and the

motion is timely filed under this rule, the court shall enter a nonfinal, nonappealable

order allowing the defendant 60 days to amend the motion.").

              Accordingly, we reverse only the portion of the postconviction court's order

that summarily denies ground one of Mr. Stoddard's motion and remand for the

postconviction court to strike this claim and to grant Mr. Stoddard sixty days to amend.

If Mr. Stoddard does file a facially sufficient claim, the postconviction court shall

determine if the case files and records conclusively refute it. If they do not, the

postconviction court shall hold an evidentiary hearing on ground one only. In all other

respects, we affirm the postconviction court's order.

              Affirmed in part; reversed in part; remanded.



SILBERMAN, LUCAS, and ROTHSTEIN-YOUAKIM, JJ., Concur.




                                             -4-
