                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

STEPHEN ELLIOT DRAKUS,                NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D16-3398

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed June 1, 2017.

An appeal from the Circuit Court for Nassau County.
Robert M. Foster, Judge.

Stephen Elliot Drakus, pro se, Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.




PER CURIAM.

      Appellant challenges the circuit court’s summary denial of his

postconviction motion filed pursuant to Florida Rule of Criminal Procedural 3.850.

Appellant raised 7 grounds in his motion. We find that the court erred in

summarily denying ground 1 because it was not conclusively refuted by the record;

however, we also find that claim was legally insufficient. Thus, we reverse and
remand for the circuit court to allow appellant the opportunity to amend ground 1.

We affirm the denial of the remaining claims.

      “We review the summary denial of claims for postconviction relief to

determine whether the claims are legally sufficient and whether they are

conclusively refuted by the record.” Griggs v. State, 995 So. 2d 994, 995 (Fla. 1st

DCA 2008).

      In ground 1 of his motion, appellant alleged that counsel was ineffective for

advising him to reject a 15-year plea offer because counsel was certain that a

newly assigned prosecutor would offer a better deal. However, the new prosecutor

did not. Appellant asserted that but for counsel’s advice, he would have accepted

the 15-year plea offer and the trial court would not have rejected the plea offer.

      The postconviction court found this claim was conclusively refuted by 3

statements made by appellant and his counsel during a pre-trial hearing. In the first

two statements, appellant said that he was fully prepared to proceed to trial, and

there was nothing else he wanted his lawyer to do to ensure they were both ready

for trial. In the third statement, defense counsel stated that she had communicated

all plea offers to appellant, explaining that “[t]here have not been any [offers] for

some time. Back when the [prior prosecutor] had the case [] the State [] made a 15

year plea offer, which . . . [appellant] did not wish to accept at that time.” The

court found these statements demonstrated that the “decision to reject the offer was

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solely [appellant’s]” and that appellant “made no objection to the matter being set

for trial.”

       None of these statements conclusively refute, or even address, appellant’s

claim that he rejected the 15-year plea offer due to counsel’s advice that a better

offer would be forthcoming. The first two statements merely established that

appellant and his counsel were prepared for trial. In the third statement, counsel

confirmed that appellant rejected the 15-year plea offer, but did not state why.

       It is also unclear why the postconviction court believed appellant’s claim of

ineffective assistance was refuted by appellant’s failure to object to going to trial.

It is not apparent on what grounds the court believed that appellant could have

objected. Perhaps the postconviction court believed that if appellant still wanted to

accept the 15-year plea deal, he should have stated so at that time. However, there

is no indication in the record that the offer was still on the table. Defense counsel

implied the opposite by stating that there “have not been any [offers] for some

time.” Thus, the record does not conclusively refute appellant’s claim of

ineffective assistance of counsel, and the postconviction court erred in summarily

denying this claim.

       However, although not addressed by the postconviction court, appellant’s

claim was facially insufficient.

       [C]oncerning ineffective assistance of counsel claims in which the
       defendant rejected a plea offer based on misadvice. . . . in order to
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      show prejudice, the defendant must demonstrate a reasonable
      probability, defined as a probability sufficient to undermine
      confidence in the outcome, 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) (internal citations omitted).

      “‘A claim that misinformation supplied by counsel induced a defendant

to reject a favorable plea offer can constitute an actionable ineffective assistance of

counsel claim.’” Hauter v. State, 206 So. 3d 839, 840 (Fla. 5th DCA 2016)

(quoting Lamb v. State, 202 So. 3d 118, 120 (Fla. 5th DCA 2016)). However, the

defendant must allege that counsel’s advice was deficient. Id.

      In Morgan v. State, 991 So. 2d 835, 841 (Fla. 2008), the supreme court held

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,

reasoning “[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., receded from on other grounds by Alcorn, 121 So. 2d 2119. In

Morgan, there was “no allegation 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.”

Morgan, 991 So. 2d at 841. Thus, the claim was insufficient. Id.
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       Similarly here, appellant has failed to allege that counsel’s advice was

deficient. He fails to allege that counsel’s confidence that appellant would receive

a lower plea offer from the newly appointed prosecutor was unreasonable, or that

counsel had not investigated or was not otherwise familiar with the case. Thus,

appellant failed to sufficiently allege deficient performance.

       Additionally, appellant also failed to allege the second Alcorn prejudice

factor – that the State would not have withdrawn the offer. As such, this claim is

facially insufficient.

       When a defendant’s initial rule 3.850 motion alleging ineffective assistance

of counsel is found to be legally insufficient, the defendant should be given at least

one opportunity to amend the motion. Spera v. State, 971 So. 2d 754, 761 (Fla.

2007); Ferris v. State, 996 So. 2d 228, 229 (Fla. 1st DCA 2008).

       As such, we reverse that portion of the order that denied ground 1 as being

refuted by the record with instructions that the postconviction court allow appellant

to amend ground 1 to state a facially sufficient claim within a reasonable period of

time. As to all other claims, we affirm.

       AFFIRMED in part; REVERSED in part; REMANDED.

ROBERTS, C.J., WOLF and THOMAS, JJ., CONCUR.




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