              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                            IN THE DISTRICT COURT OF APPEAL

                                            OF FLORIDA

                                            SECOND DISTRICT



CHRISTOPHER DOUGLAS HUNTOON,       )
                                   )
           Appellant,              )
                                   )
v.                                 )                 Case No. 2D17-950
                                   )
STATE OF FLORIDA,                  )
                                   )
           Appellee.               )
___________________________________)

Opinion filed March 14, 2018.

Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Charlotte County; Donald H. Mason, Judge.



PER CURIAM.


             Christopher Douglas Huntoon appeals the order summarily denying his

motion filed under Florida Rule of Criminal Procedure 3.850. We reverse the denial of

grounds two and five but affirm the denial of the remaining claims without comment.

             A jury convicted Mr. Huntoon of possession of a firearm by a convicted

felon and tampering with or fabricating physical evidence. Mr. Huntoon was sentenced

to five years' imprisonment, which included a three-year mandatory minimum sentence
as provided by section 775.087(2)(a), Florida Statutes (2013), for count one, and two

years' community control followed by three years' probation for count two.

              In ground two of his rule 3.850 motion, Mr. Huntoon alleged that trial

counsel informed him that the State had extended a six-year plea offer, even though

counsel failed to tell him that the State was going to withdraw the plea offer if he

proceeded with a hearing on his pending motion to suppress. Without knowing that the

State's offer would be withdrawn, Mr. Huntoon proceeded with the hearing on his motion

to suppress. It was only after the denial of the motion to suppress that Mr. Huntoon was

made aware of the fact that the State had withdrawn its plea offer. Finally, consistent

with the requirements of Alcorn v. State, 121 So. 3d 419, 422 (Fla. 2013), Mr. Huntoon

asserted that if counsel had properly advised him that the State would be withdrawing

its plea offer, Mr. Huntoon would have foregone the hearing on his motion to suppress

and would have accepted the State's offer. He also alleged that the State would not

have withdrawn the offer, the court would have accepted the offer, and his sentence

under the offer's terms would have been less severe than under the judgment and

sentence that was in fact imposed.

              In denying ground two of Mr. Huntoon's motion, the postconviction court

adopted the State's response to this claim, finding that Mr. Huntoon failed to satisfy the

third requirement of Alcorn. Specifically, the postconviction court found that the trial

court could not have accepted a plea offer of six years' imprisonment that failed to

include the mandatory minimum sentence for the possession of a firearm by a convicted

felon, as the failure to impose the mandatory minimum sentence would constitute an

illegal sentence. The postconviction court also found Mr. Huntoon's claim inherently



                                            -2-
incredible because while Mr. Huntoon alleged that he did not know that the State would

withdraw the offer if the suppression motion went forward, Mr. Huntoon remained silent

when he was first made aware of the withdrawal in open court.

             In postconviction matters, courts must accept as true the factual

allegations not refuted by the record. Kimbrough v. State, 886 So. 2d 965, 981 (Fla.

2004); see also Fla. R. Crim. P. 3.850(f)(5). Further, where no evidentiary hearing is

held below, we must accept the defendant's factual allegations to the extent they are not

refuted by the record. Kimbrough, 886 So. 2d at 981 (quoting Peede v. State, 748 So.

2d 253, 257 (Fla. 1999)).

             The record attachments to the postconviction court's order are insufficient

to refute Mr. Huntoon's claim. The postconviction court found that the trial court could

not have accepted the six-year offer because it did not include the three-year mandatory

minimum sentence required by section 775.087(2)(a), for the possession of a firearm by

a convicted felon. There is nothing in the record before this court to indicate whether

the six-year offer included the three-year mandatory minimum sentence, and the six-

year offer does not, in and of itself, preclude the mandatory three-year sentence.

             The postconviction court also found Mr. Huntoon's claim that he would

have accepted the State's plea offer and foregone the hearing on his motion to

suppress to be inherently incredible. We cannot conclude that Mr. Huntoon's claim is

inherently incredible so as to allow the postconviction court to reject Mr. Huntoon's

allegations without holding an evidentiary hearing. There is nothing inherently

incredible about Mr. Huntoon's claim that he would have foregone the motion to

suppress and accepted the State's plea offer had he been properly advised by counsel.



                                           -3-
Nor does his failure to speak up after hearing in open court that the State had withdrawn

the plea offer make Mr. Huntoon's claim inherently incredible. In the context of

ineffective assistance, "[p]rejudice . . . is determined based upon a consideration of the

circumstances as viewed at the time of the offer and what would have been done with

proper and adequate advice." Armstrong v. State, 148 So. 3d 124, 126 (Fla. 2d DCA

2014) (emphasis omitted) (quoting Alcorn, 121 So. 3d at 432). Thus, the events

occurring after the hearing on his motion to suppress could not cure counsel's alleged

failure to provide Mr. Huntoon with all of the information necessary to make an informed

decision concerning the offer. See Wilson v. State, 189 So. 3d 912, 913 (Fla. 2d DCA

2016).

              In ground five of his rule 3.850 motion, Mr. Huntoon alleged that trial

counsel was ineffective for failing to advise and explain to him that he could be found

guilty of possession of a firearm by a convicted felon if the jury found him guilty of

constructively possessing the firearms. Mr. Huntoon asserted that in discussing the

plea agreement, trial counsel advised him that the State had to prove actual possession

for him to be found guilty of possession of a firearm. Mr. Huntoon insisted that he would

have accepted the six-year plea offer if he had been properly advised that the State was

only required to prove constructive possession of the firearms. He also alleged that the

State would not have withdrawn the offer, the court would have accepted the offer, and

his sentence under the offer's terms would have been less severe than under the

judgment and sentence that was in fact imposed.

              In denying this claim, the postconviction court found that Mr. Huntoon

could not demonstrate prejudice in this regard because the record indicated that the jury



                                            -4-
found Huntoon guilty of actual possession of a firearm and, therefore, counsel's alleged

failure to advise regarding constructive possession could not be prejudicial.

              The postconviction court incorrectly focused on what occurred after Mr.

Huntoon rejected the plea offer. What happened after Mr. Huntoon rejected the plea

offer did not rectify counsel's failure to provide Mr. Huntoon with all of the information

necessary to make an informed decision on whether to accept the offer. See

Armstrong, 148 So. 3d at 126 (holding that in the context of ineffective assistance

resulting in the rejection of a plea offer, prejudice is determined based upon a

consideration of the circumstances as viewed at the time of the offer and what would

have been done with proper and adequate advice).

              If counsel failed to explain to Mr. Huntoon the elements of the offense of

possession of a firearm by a convicted felon, including the fact that possession could be

proven by constructive or actual possession, counsel's failure would constitute deficient

performance. See Fla. R. Crim. P. 3.171(c)(2)(B) ("Defense counsel shall advise

defendant of . . . all pertinent matters bearing on the choice of which plea to enter and

the particulars attendant upon each plea and the likely results thereof, as well as any

possible alternatives that may be open to the defendant."); Parhm v. State, 227 So. 3d

172, 174 (Fla. 2d DCA 2017) (reversing summary denial where record attachments did

not refute defendant's claim "that his trial counsel failed to properly advise him of the

elements of the charged offenses"). Mr. Huntoon has sufficiently alleged deficient

performance and prejudice, and the postconviction court's order fails to refute this claim.




                                            -5-
              Accordingly, we reverse the order under review to the extent that it

summarily denied grounds two and five and remand for the court to either attach

portions of the record that conclusively refute the claims or hold an evidentiary hearing.

              We warn Mr. Huntoon, as we have warned others before him, of the

potentially harsh consequences he faces if he succeeds. "Even where trial counsel's

misadvice results in a defendant's rejection of a favorable plea offer, the State is not

required to reoffer its original plea on remand." Odegaard v. State, 137 So. 3d 505, 508

(Fla. 2d DCA 2014).

              Affirmed in part, reversed in part, and remanded.



VILLANTI, CRENSHAW, and MORRIS, JJ., Concur.




                                            -6-
