           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
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                          No. 1D17-3309
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DARRION R. KITCHEN,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Duval County.
Angela M. Cox, Judge.

                          March 13, 2019


WOLF, J.

    Appellant challenges the summary denial of his
postconviction motion filed pursuant to Florida Rule of Criminal
Procedure 3.850. We affirm as to ground 1 without comment. We
reverse and remand for further proceedings for grounds 2 and 3.

     In ground 2, appellant argued his counsel was ineffective for
failing to sufficiently advise him regarding a plea offer for 7 years
in prison. He asserted counsel failed to tell him that 7 years in
prison was the minimum sentence that he could receive under
the guidelines if he were found guilty. If he had been properly
advised, he argued he would have accepted the offer, 1 the State
would not have revoked the offer, the trial court would have
accepted the offer, and he would have received a lesser sentence
than he ultimately received.

    Appellant’s claims were legally sufficient. Defense counsel is
required to “advise the defendant of . . . all pertinent matters
bearing on” the decision to accept or reject a plea offer, including
the possible range of sentencing. Fla. R. Crim. P. 3.171(c)(2)(B).
See also Depriest v. State, 177 So. 3d 701 (Fla. 1st DCA 2015);
Robinson v. State, 148 So. 3d 535, 537 (Fla. 2d DCA 2014). Thus,
we remand either for the court to attach portions of the record
conclusively refuting these claims or to conduct an evidentiary
hearing.

    For ground 3, appellant alleged counsel was ineffective for
misadvising him that his testimony was not needed. Appellant
was charged with sexual battery, and his theory of defense was
that the sexual encounter was consensual. However, he argued
counsel failed to appreciate that the defense lacked any direct
evidence of consent apart from appellant’s testimony. Appellant
argued if he had been properly advised, he would have testified
that the sex was consensual, that the victim initiated the sex,
and that she expressed regret afterwards because she was afraid
her boyfriend would find out. He argues his testimony probably
would have resulted in a different verdict.

     The postconviction court found the record conclusively
refuted appellant’s claim because during a colloquy, appellant
stated he understood that it was his decision whether or not to
testify. However, the supreme court has clarified that even where
the record conclusively demonstrates that “the defendant
knowingly and voluntarily decided not to testify. . . . [a] separate
question is whether [counsel’s] advice [to the defendant], even if
voluntarily followed, was nevertheless deficient because no

    1   Appellant explicitly alleged that he rejected the State’s
offer: “Mr. Kitchen alleges that he rejected the State’s plea offer
and proceeded to trial because he was not fully informed.”
(Emphasis added).

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reasonable attorney would have discouraged [the defendant] from
testifying.” Lott v. State, 931 So. 2d 807, 818-19 (Fla. 2006).

     Here, appellant did not challenge the voluntariness of his
decision not to testify. Instead, he argued counsel’s advice that he
should choose not to testify was deficient performance. The
postconviction court did not address this argument. We reverse
and remand for the court either to attach portions of the record
refuting this claim or to hold an evidentiary hearing. 2

    AFFIRMED in part, REVERSED and REMANDED in part.

LEWIS and RAY, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Darrion R. Kitchen, pro se, Appellant.

Ashley B. Moody, Attorney General, Tallahassee, for Appellee.




    2 We note the State argues that appellant could not show
prejudice as to this ground because even if he had testified, his
theory of defense that the sexual encounter was consensual
would not have been successful. The State asserts he was charged
with the sexual battery of a minor, and consent is not a defense to
that charge. The State is mistaken. Appellant was charged with
sexual battery on a person twelve years of age or older as
prohibited by section 794.011(5), Florida Statutes. However, the
State did not allege that the victim was less than 18 years old.
The victim testified that she was 21 years old at the time of trial,
which occurred 6 months after the incident took place.

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