       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                         DIEUGRAND JACQUES,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D15-3410

                             [June 15, 2016]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; Charles E. Burton,
Judge; L.T. Case No. 2009-CF-015704AXX.

   Dieugrand Jacques, Blountstown, pro se.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

   We reverse the summary denial of appellant’s motion seeking
postconviction relief under Florida Rule of Criminal Procedure 3.850 and
remand to the circuit court for an evidentiary hearing.
  After a jury trial, appellant was convicted of lewd or lascivious
molestation and sentenced to 10 years in prison.
    In a timely Rule 3.850 motion, appellant claimed ineffective assistance
of counsel in failing to convey to him a plea offer of probation. His motion
satisfied the elements of Alcorn v. State, 121 So. 3d 419 (Fla. 2013). He
claimed that after his conviction he learned that, just before trial, the
prosecutor had conveyed to defense counsel an offer involving probation
and registration as a sex offender, but counsel rejected the offer without
consulting him. Appellant alleged that he would have accepted the plea
offer and his sentence would have been less severe than his 10-year prison
sentence. There was no indication that the prosecutor would have
withdrawn the plea or the trial court would have rejected it.
   The state’s response to the motion argued that appellant failed to state
the length of the offered probationary term, so it cannot be determined
whether the offered sentence was less severe than 10 years in prison. Also,
the state pointed to appellant’s remarks at sentencing and letters he had
written, in which he steadfastly maintained his innocence.
   The state’s response to the motion did not conclusively refute
appellant’s claim. Failing to allege the length of the offered probationary
term was not fatal to appellant’s motion; almost any term of probation
without prison time is viewed as less harsh than a 10-year prison
sentence. Although the attachments to the state’s response strongly
suggest that appellant would not have accepted the plea, they do not
conclusively refute his allegation that he would have. Even those who
believe they are innocent may enter a plea under North Carolina v. Alford,
400 U.S. 25 (1970).
   Reversed and remanded.

DAMOORGIAN and KLINGENSMITH, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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