        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT
                                 July Term 2014

                               DAVID MEARA,
                                 Appellant,

                                        v.

                            STATE OF FLORIDA,
                                 Appellee.

                                No. 4D14-1491

                              [October 22, 2014]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Nineteenth Judicial Circuit, Okeechobee County; Sherwood Bauer,
Judge; L.T. Case No. 472010CF000638B.

    David J. Meara, Carrabelle, pro se.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

    We affirm the trial court’s summary denial of appellant’s postconviction
relief motion in which he alleged that his trial counsel was ineffective for
failing to convey his acceptance of the state’s plea offer. He has not met
the requirements of Alcorn v. State, 121 So. 3d 419 (Fla. 2013).

    In cases where a defendant is claiming ineffective assistance of counsel
in failing to convey a plea offer,1 Alcorn requires that the defendant show
a reasonable probability, defined as a probability sufficient to undermine
confidence in the outcome, that: (1) he would have accepted the offer; (2)
the prosecutor would not have withdrawn the offer; (3) the court would
have accepted the offer; and (4) the conviction or sentence would have been
less severe than what was imposed. 121 So. 3d at 430. Appellant’s motion

1 We equate the failure to convey the acceptance of the plea offer to the state as
“tantamount to failing to communicate a plea offer” to the defendant. See Brown
v. State, 138 So. 3d 510, 512 (Fla. 4th DCA 2014).
does not show a reasonable probability that the prosecutor would not have
withdrawn the offer had counsel immediately conveyed appellant’s
acceptance of it. It is clear from his own motion that the prosecutor was
negotiating to obtain testimony against appellant’s co-defendants in
exchange for a more lenient sentence. When the prosecutor obtained an
agreement with a defendant in an unrelated case to testify against the
appellant and his co-defendants in this case, he withdrew the offer to
appellant. The state may withdraw its offer at any time prior to acceptance
by the court. See Fla. R. Crim P. 3.172(g). These circumstances do not
show a reasonable probability that the state would have maintained its
offer when it no longer needed the testimony of appellant.

   Appellant also contends that trial counsel was ineffective for failing to
request a downward departure sentence and to present mitigating
evidence to support it. The trial court properly rejected this claim, as the
court was presented with all of the mitigating evidence in support of
appellant’s request for a youthful offender sentence. The sentencing judge
rejected it for that purpose, and appellant cannot show that there was any
reasonable probability that the judge would have then downwardly
departed based upon the same reasons.

   Affirmed.

GROSS and CONNER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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