         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


VERNARDO J. GRAY,

             Appellant,

 v.                                                    Case No. 5D16-3260

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed February 3, 2017

3.850 Appeal from the Circuit Court
for Orange County,
Heather L. Higbee, Judge.

Vernardo J. Gray, Malone, pro se.

No Appearance for Appellee.


EDWARDS, J.

      Appellant, Vernardo J. Gray, appeals the trial court’s order summarily denying his

motion for postconviction relief. Appellant was convicted of attempted second-degree

murder (count 1) and aggravated assault with a firearm (count 2). He was sentenced to

concurrent terms of thirty years in prison on count 1 and twenty years in prison on count

2. Appellant timely filed an original, then an amended, and finally a second amended

motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. In

his motion, Appellant raises four claims of ineffective assistance of counsel.       The
postconviction court summarily denied all four claims. For the reasons set forth below,

we reverse as to Claim One and affirm as to Claims Two, Three, and Four.

       In order to successfully argue ineffective assistance of counsel, a defendant must

allege that counsel’s performance was deficient and that he or she was prejudiced as a

result. See Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986) (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984) (additional citation omitted)).          To show that

counsel’s performance was deficient, the defendant “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.” Id. To show the

requisite prejudice, the defendant must demonstrate a “reasonable probability that, but

for counsel’s unprofessional errors, the results of the proceeding would have been

different.” Wainwright v. State, 896 So. 2d 695, 698 (Fla. 2004) (quoting Strickland, 466

U.S. at 694). “A reasonable probability is a probability sufficient to undermine confidence

in the outcome.” Id. (quoting Strickland, 466 U.S. at 694).

       In Claim One, Appellant alleges that defense counsel was ineffective for advising

Appellant to reject the State’s plea offer of five years in the Department of Corrections.

Appellant asserts that defense counsel incorrectly advised him that Appellant’s recorded

statement could not be admitted in evidence, and that without that evidence, the State’s

case was “extremely weak.” Appellant claims that if defense counsel had made him

aware of the potential that his recorded statement would be admissible, he would have

accepted the State’s offer of five years. He further asserts that the State would not have

withdrawn its offer and that the offer would have been accepted by the trial court, resulting

in a significantly shorter prison term.




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      In its order summarily denying Claim One, the trial court explained that because

defense counsel inquired about the recorded statement just prior to trial, Appellant was

on notice that the statement would be admitted. The trial court thus concluded that

because of this knowledge Appellant cannot establish that defense counsel was

ineffective. To uphold a summary denial by the trial court, “the claims must be either

facially invalid or conclusively refuted by the record.” Peede v. State, 748 So. 2d 253,

257 (Fla. 1999) (citing Fla. R. Crim. P. 3.850(d)). The allegations of defendant’s motion

are assumed to be true unless conclusively refuted by the record. See Fla. R. Crim. P.

3.850(f)(4)-(6) (permitting summary denial of claims only if “conclusively refuted” by the

record); Freeman v. State, 761 So. 2d 1055, 1065 n.9 (Fla. 2000).

      “A claim that misinformation supplied by counsel induced a defendant to reject a

favorable plea offer can constitute actionable ineffective assistance of counsel.” Colon v.

State, 909 So. 2d 484, 490 (Fla. 5th DCA 2005) (quoting Steel v. State, 684 So. 2d 290,

291 (Fla. 4th DCA 1996)). The Florida Supreme Court has stated as follows:

             [I]n order to 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).

      Appellant claims that defense counsel told him that his recorded statement could

not be admitted. The trial transcript shows that defense counsel asked the trial court for

additional time to review the recorded statements with Appellant. To the extent that




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defense counsel may have privately misadvised Appellant regarding the admissibility of

the recorded statement, the record does not conclusively refute this claim. The transcript

suggests that Appellant was not in the courtroom when defense counsel discussed the

statement with the court. Specifically, defense counsel informed the court that he had

discussed certain matters with Appellant “downstairs” and would like to have a few

minutes to discuss the State’s plea offer “once [Appellant was] upstairs.” Additionally, the

record does not show that Appellant formally rejected the plea offer or that the trial court

inquired about the plea offer.

       Because Appellant’s claim is facially sufficient and because the record does not

conclusively refute Claim One, we reverse and remand for the postconviction court to

attach the records that conclusively refute this claim or, in the alternative, hold an

evidentiary hearing.

       Claims Two, Three, and Four are meritless. Accordingly, we reverse as to Claim

One and affirm as to Claims Two, Three, and Four.

       AFFIRMED in part; REVERSED in part.




PALMER and LAMBERT, JJ., concur.




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