         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED


WILLIAM CASIANO,

              Appellant,

 v.                                                      Case No. 5D17-2343

STATE OF FLORIDA,

           Appellee.
________________________________/

Opinion filed December 29, 2017

3.850 Appeal from the Circuit
Court for Osceola County,
Greg A. Tynan, Judge.

Matthew R. McLain, of McLain Law, P.A.,
Longwood, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Andrea K. Totten,
Assistant Attorney General, Daytona
Beach, for Appellee.


PER CURIAM.

       We reverse and remand the order denying Appellant’s Florida Rule of Criminal

Procedure 3.850 motion because Appellant’s claim of misadvice by trial counsel and the

resulting prejudice is not refuted by the record before us.

       Appellant was charged with sexual battery with a deadly weapon or physical force.

The maximum penalty for this crime was life in prison with a twenty-five-year minimum
mandatory, with the latter being imposed if the defendant used a deadly weapon. §§

794.011(3), 775.082(3)(a)3., 794.0115(2)(b), Fla. Stat. (2013). Appellant alleges that he

was offered and rejected a favorable plea offer not knowing that he faced a minimum

mandatory of twenty-five years in prison. Had he known about the minimum mandatory,

Appellant alleges that he would have accepted the plea offer and that the trial court would

have abided by the plea agreement.

       To obtain relief on a claim that defense counsel misadvised the defendant in a way

that caused the defendant to reject a plea offer, the defendant must establish that:

              (1) he or she 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              have withdrawn the offer, (3) the court would have accepted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 v. State, 121 So. 3d 419, 422 (Fla. 2013). Here, Appellant’s allegations were

facially sufficient. Defense counsel has a duty to advise a defendant about the possibility

of the minimum mandatory sentence. The fact that Appellant did not receive the minimum

mandatory sentence in this case because of an error in the verdict form does not negate

his claim that he would have taken the plea if he had known he faced a minimum

mandatory sentence.

       On remand, the trial court shall either grant Appellant a hearing to see if he can

prove the Alcorn factors or attach portions of the record that conclusively refute the

allegations in the motion.

       REVERSED AND REMANDED.

PALMER, TORPY and EISNAUGLE, JJ., concur.




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