       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 4, 2016.

                              ________________

                               No. 3D14-2067
                          Lower Tribunal No. 08-8599
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                              Orville Maxwell,
                                   Appellant,

                                       vs.

                            The State of Florida,
                                   Appellee.



      An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Eric W. Hendon, Judge.

      Orville Maxwell, in proper person.

      Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant
Attorney General, for appellee.

Before SALTER, FERNANDEZ and LOGUE, JJ.

      FERNANDEZ, J.

                  ON MOTION FOR CLARIFICATION
      Upon consideration of the State of Florida’s Motion for Clarification in

which the State seeks clarification on whether Orville Maxwell’s counsel failed to

communicate the 10-year plea offer to Maxwell, we grant the motion and

substitute this opinion in place of this Court’s previous opinion issued September

2, 2015.                    Orville Maxwell appeals the summary denial of his

3.850 motion for post-conviction relief in which he raised various grounds for

relief. We reverse the denial of relief as to ground four for trial counsel’s failure to

timely convey the State’s plea offer, and remand the case for the trial court to

either attach those portions of the record that conclusively refute Maxwell’s claim

or to hold an evidentiary hearing.

      The State charged Maxwell with attempted premeditated first-degree murder

with the discharge of a firearm and aggravated assault with a firearm. Following a

jury trial, Maxwell was adjudicated guilty of both counts. He received a sentence

of thirty years in prison on the attempted murder charge, with a 25-year minimum

mandatory term, and a concurrent sentence of five years on the aggravated assault

charge.1

      If counsel failed to communicate the 10-year plea offer to Maxwell, this

would constitute error. “A defendant is entitled to an evidentiary hearing on a

motion for post-conviction relief unless: (1) the motion, files, and records in the

1  Maxwell appealed his conviction and sentence to this Court which per curiam
affirmed. Maxwell v. State, 86 So. 3d 1131 (Fla. 3d DCA 2012).

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case conclusively show that the defendant is entitled to no relief; or (2) the motion

or particular claims are legally insufficient. Lee v. State, 789 So. 2d 1176, 1177

(Fla. 3d DCA 2001).        “Where the record does not conclusively refute post-

conviction claims of ineffective assistance of counsel, the defendant is entitled to

an evidentiary hearing on those claims.” Id.            Maxwell specifically alleged in

ground four that his trial counsel rendered ineffective assistance because he first

heard of the State’s 10-year plea offer at the sentencing hearing. He further alleged

that he would have otherwise accepted the 10-year plea offer, which would have

resulted in a sentence significantly lower than the thirty years he received.

Furthermore, the record does not conclusively refute Maxwell’s ineffective

assistance of counsel claim that counsel failed to convey the 10-year plea offer.

      The trial court thus erroneously concluded that Maxwell failed to state a

colorable claim for relief. We therefore reverse the denial of relief as to ground

four for trial counsel’s failure to timely convey the State’s plea offer, and remand

the case for the trial court to either attach those portions of the record that

conclusively refute Maxwell’s claim or to hold an evidentiary hearing. The denial

of relief as to all other grounds raised is affirmed.

      Affirmed in part, reversed in part, and remanded for further proceedings

consistent with this opinion.




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