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


                                               IN THE DISTRICT COURT OF APPEAL

                                               OF FLORIDA

                                               SECOND DISTRICT


JAHMAR STEWART, DOC #R81544,                   )
                                               )
             Appellant,                        )
                                               )
v.                                             )      Case No. 2D17-2788
                                               )
STATE OF FLORIDA,                              )
                                               )
             Appellee.                         )
                                               )

Opinion filed June 8, 2018.

Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for Pasco
County; Kimberly Campbell, Judge.

Jahmar Stewart, pro se.



PER CURIAM.


             In 2015, Jahmar Stewart pleaded guilty to kidnapping while in actual

possession of a firearm and was sentenced to prison for ten years. He thereafter filed a

motion for postconviction relief under Florida Rule of Criminal Procedure 3.850,

asserting two grounds of ineffective assistance of counsel. The circuit court summarily

denied his motion, and Mr. Stewart now appeals that decision. We affirm the denial of
ground two of Mr. Stewart's motion without comment. However, we reverse the

summary denial of ground one and remand this case for further proceedings.

               In ground one, Mr. Stewart claimed that his court-appointed counsel failed

to inform him of the elements of an offense the State had threatened to charge him with

(tampering with a witness) if he did not accept the State's plea offer; nor, he claims, did

his attorney address the availability of any possible defenses to that potential charge.

Mr. Stewart further asserts that but for this failure, he would not have entered a guilty

plea as to the kidnapping charge in exchange for the State agreeing not to file the

additional charge of witness tampering. In fact, in his motion Mr. Stewart alleged that

his counsel informed him that he would have no viable defense to the tampering charge

if the State were to proceed forward with it, that the State's possession of recorded calls

to the witness alone would result in him being found guilty of the tampering offense, and

that he could be sentenced to life in prison. In his motion, he states that had he known

there was a knowing and intentional element to the tampering offense,1 he would not




               1See  § 914.22(1)(a)-(f), Fla. Stat. (2014) ("(1) A person who knowingly
uses intimidation or physical force, or threatens another person, or attempts to do so, or
engages in misleading conduct toward another person, or offers pecuniary benefit or
gain to another person, with intent to cause or induce any person to: (a) Withhold
testimony, or withhold a record, document, or other object, from an official investigation
or official proceeding; (b) Alter, destroy, mutilate, or conceal an object with intent to
impair the integrity or availability of the object for use in an official investigation or official
proceeding; (c) Evade legal process summoning that person to appear as a witness, or
to produce a record, document, or other object, in an official investigation or an official
proceeding; (d) Be absent from an official proceeding to which such person has been
summoned by legal process; (e) Hinder, delay, or prevent the communication to a law
enforcement officer or judge of information relating to the commission or possible
commission of an offense or a violation of a condition of probation, parole, or release
pending a judicial proceeding; or (f) Testify untruthfully in an official investigation or an
official proceeding, commits the crime of tampering with a witness, victim, or
informant.").

                                               -2-
have accepted the plea and would have gone to trial. Further, he claims that had he

proceeded to trial, he would have presented a misidentification defense with respect to

the kidnapping charge.

               If counsel failed to advise Mr. Stewart of the necessary elements of and

defenses to the threatened tampering charge, and Mr. Stewart's decision to accept a

plea offer turned upon the strength of that charge, counsel's performance may have

been deficient. See Phillips v. State, 229 So. 3d 426, 430 (Fla. 2d DCA 2017)

(concluding allegation of ineffective counsel for failure to inform of elements the State

needed to establish a violation of probation was sufficiently alleged and unrefuted by the

postconviction court); Parhm v. State, 227 So. 3d 172, 174 (Fla. 2d DCA 2017); Munroe

v. State, 28 So. 3d 973, 976 (Fla. 2d DCA 2010). Mr. Stewart's claim that he would

have proceeded to trial is credible based on the record before us. See Jennings v.

State, 123 So. 3d 1101, 1121 (Fla. 2013) ("[T]he court must accept the movant's factual

allegations as true to the extent that they are not refuted by the record."); Savage v.

State, 832 So. 2d 807, 809 (Fla. 2d DCA 2002). The record on appeal does not

conclusively refute Mr. Stewart's allegations; therefore, the trial court must conduct an

evidentiary hearing on this claim of his motion. See Jacobs v. State, 880 So. 2d 548,

551 (Fla. 2004) ("[I]f the trial court finds that the motion is facially sufficient, that the

claim is not conclusively refuted by the record, and that the claim is not otherwise

procedurally barred, the trial court should hold an evidentiary hearing to resolve the

claim."); see also Bush v. State, 964 So. 2d 181, 182-83 (Fla. 4th DCA 2007).

Accordingly, we must reverse the order as it pertains to ground one of Mr. Stewart's

motion.




                                               -3-
              On remand, Mr. Stewart is entitled to an evidentiary hearing to determine

if his allegation is true that his trial counsel failed to advise him regarding the elements

and defenses of a tampering with a witness offense.

              Reversed and remanded with instructions.



NORTHCUTT, LUCAS, and ROTHSTEIN-YOUAKIM, JJ., Concur.




                                            -4-
