         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


JEFFREY MICHAEL PARENTI,

                    Appellant,

 v.                                                             Case No. 5D16-2203

STATE OF FLORIDA,

                    Appellee.

_____________________________________/

Opinion filed August 18, 2017

3.850 Appeal from the Circuit Court
for Volusia County,
Frank Marriott, Judge.

James S. Purdy, Public Defender, and
Kathryn Rollison Radtke, Assistant Public
Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Rebecca Roark Wall,
Assistant Attorney General, Daytona
Beach, for Appellee.



PER CURIAM.

      Jeffrey Michael Parenti ("Appellant") appeals the trial court's denial of his Florida

Rule of Criminal Procedure 3.850 motion for postconviction relief alleging ineffective

assistance of counsel. Although Appellant raised five grounds for relief in his motion, he

challenges only the trial court's denial of ground one, in which he alleged that defense
counsel provided ineffective assistance by not informing him that he qualified for

sentencing as a habitual felony offender ("HFO").1 Finding that the trial court erred by

denying relief on this ground, we reverse and remand for further proceedings consistent

with this opinion.

       In 2011, the State charged Appellant with DUI manslaughter (count I), driving while

license suspended or revoked causing death (count II), and vehicular homicide (count III).

After Appellant's first trial resulted in a mistrial, the State extended him a plea offer of

seven years' incarceration followed by eight years' probation. The State and defense

counsel informed Appellant that he faced a maximum of fifteen years' incarceration if

convicted at trial. Appellant rejected the plea offer, and the case proceeded to a second

trial, at which the jury convicted him on all counts.2

       After trial, the State filed a notice of intent to seek HFO sentencing. Defense

counsel objected, reasoning that the State previously informed Appellant that it sought a

maximum sentence of fifteen years' incarceration. The trial court overruled defense

counsel's objection on the ground that the State properly filed its notice approximately

thirty days before sentencing. The trial court sentenced Appellant as an HFO to

concurrent terms of thirty years' incarceration, with four years minimum (count I), and ten

years' incarceration (count II). Appellant then filed a motion for postconviction relief

arguing, inter alia, that defense counsel provided ineffective assistance by not informing

him that he potentially faced sentencing as an HFO. Appellant alleged that, had defense




       1   See § 775.084(1)(a), Fla. Stat. (2011).
       2 The trial court then vacated Appellant's conviction for vehicular homicide on
double jeopardy grounds.


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counsel informed him that he faced a maximum sentence of thirty years' incarceration, he

"would have unhesitantly accepted the State's plea offer."

       At the evidentiary hearing, defense counsel testified that he did not know that

Appellant—who had twelve prior felony convictions—qualified as an HFO. Defense

counsel elaborated that he was "very surprised" when the State filed its notice of intent to

sentence Appellant as an HFO. Defense counsel believed that, "had [Appellant] known

about the 30 years habitual felony offender being sentence day for day . . . to up to 30

years it could have influenced his decision." Appellant similarly testified that defense

counsel never informed him of his potential HFO status. Appellant believed that, based

on his plea negotiations with the State, he faced a maximum of fifteen years'

incarceration. After the hearing, the trial court entered an order denying Appellant's

motion for postconviction relief on all grounds. On ground one, the trial court determined

that, because the State did not file its notice of intent to seek sentencing as an HFO until

after trial, defense counsel did not provide ineffective assistance by failing to inform

Appellant of that possibility during plea negotiations.

        When considering a trial court's ruling on a rule 3.850 motion after an evidentiary

hearing, we defer to the trial court's factual findings—provided that they are supported by

competent, substantial evidence—but we review de novo the trial court's "application of

the law to those facts." Jennings v. State, 123 So. 3d 1101, 1113 (Fla. 2013) (quoting

Mungin v. State, 932 So. 2d 986, 998 (Fla. 2006)). The Florida Supreme Court has

explained that, in accordance with Strickland v. Washington, 466 U.S. 668 (1984), a

defendant must establish two elements to raise a successful claim of ineffective

assistance of counsel:




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              First, the claimant must identify particular acts or omissions of
              the lawyer that are shown to be outside the broad range of
              reasonably competent performance under prevailing
              professional standards. Second, the clear, substantial
              deficiency shown must further be demonstrated to have so
              affected the fairness and reliability of the proceeding that
              confidence in the outcome is undermined. A court considering
              a claim of ineffectiveness of counsel need not make a specific
              ruling on the performance component of the test when it is
              clear that the prejudice component is not satisfied.

Schoenwetter v. State, 46 So. 3d 535, 546 (Fla. 2010) (quoting Maxwell v. Wainwright,

490 So. 2d 927, 932 (Fla. 1986)). To obtain relief on the ground that defense counsel

misadvised the defendant not to accept a plea, 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). When determining whether defense

counsel's misadvice concerning a plea prejudiced the defendant, the trial court must

consider the circumstances "at the time of the offer and what would have been done with

proper and adequate advice." Id. at 432 (emphasis omitted).

       The Fourth District Court addressed nearly identical circumstances in Lester v.

State, 15 So. 3d 728 (Fla. 4th DCA 2009). In Lester, the State charged the defendant with

robbery by force. Id. at 729. The defendant rejected a plea offer of 41.7 months'

incarceration based on defense counsel's advice that he faced a maximum sentence of

fifteen years' incarceration. Id. The case proceeded to trial, and a jury convicted Appellant

as charged. Id. Thereafter, the State filed a notice of intent to seek habitual violent felony

offender ("HVFO") sentencing. Id. The trial court determined that the defendant qualified




                                              4
as an HVFO, sentencing him to thirty years' incarceration. Id. The defendant moved for

postconviction relief, reasoning that defense counsel provided ineffective assistance by

not informing him that he potentially qualified as an HVFO. Id. At the evidentiary hearing,

defense counsel testified that he never discussed habitualization with the defendant. Id.

Defense counsel believed that the defendant may have instead accepted the plea had he

known of the potential sentence as an HVFO. Id. The trial court denied the defendant's

motion, reasoning that defense counsel did not misadvise him with regard to the plea

offer. Id. at 730. The Fourth District Court reversed, holding that the defendant

demonstrated "that counsel was ineffective and that he would have taken the plea had

counsel informed him of the consequences." Id. at 731.

       We find that the trial court erred by denying ground one of Appellant's motion for

postconviction relief. Similar to Lester, defense counsel conceded that he did not know

that his client potentially qualified as a habitual offender. Cf. id. at 729. In addition, defense

counsel testified that Appellant may have accepted the plea if he understood his

maximum potential sentence. See id. Appellant averred in his rule 3.850 motion that: (1)

he would have accepted the plea if he knew of his potential HFO status; (2) the State

would not have withdrawn the plea; (3) the trial court would have accepted the plea; and

(4) the trial court would have sentenced him to less than thirty years' incarceration. See

Alcorn, 121 So. 3d at 422. We disagree with the trial court's conclusion that, because the

State did not file its notice of intent to seek an HFO sentence until after trial, defense

counsel did not provide ineffective assistance. Defense counsel should have informed

Appellant that his twelve prior felony convictions potentially qualified him for the HFO

designation, regardless of whether the State sought HFO sentencing before or after trial.




                                                5
       Based on the foregoing, we reverse the trial court's denial of ground one of

Appellant's motion for postconviction relief. We note that, because the trial court found

that defense counsel did not provide deficient performance, it never reached the question

of whether defense counsel's performance prejudiced Appellant. Therefore, we remand

this case to the trial court to determine whether Appellant has shown that "(1) he would

have accepted the offer had counsel advised him of the correct statutory maximum

sentence, (2) the prosecutor would not have withdrawn the offer, and (3) the court would

have accepted the offer's terms." Alcorn, 121 So. 3d at 433 ("Because the issue of

whether [defendant] can establish prejudice remains unresolved at this juncture, we do

not reach the issue of the appropriate remedy in this case because it would be premature

to do so.").


       REVERSED and REMANDED for further proceedings.



PALMER, WALLIS and EDWARDS, JJ., concur.




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