Floyd v. State

257 So.3d 1148

Jessie FLOYD, Appellant,

v.STATE of Florida, Appellee.

No. 1D17-5007

District Court of Appeal of Florida, First District.

October 31, 2018

Jessie Floyd, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Virginia C. Harris, Assistant Attorney General, Tallahassee, for Appellee.

B.L. Thomas, C.J.

Appellant, Jessie Floyd, appeals an order denying his postconviction motion pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed below, we affirm.

Appellant was convicted after a jury trial of armed robbery with a deadly weapon (Count I) and aggravated assault with a deadly weapon (Count II). The State filed a notice of intent to seek prison releasee reoffender (PRR) designation, but withdrew the notice before sentencing. Appellant was sentenced to twenty-five years in prison on Count I and a concurrent term of five years in prison on Count II. His convictions and sentences were affirmed on appeal without opinion. See Floyd v. State , 184 So.3d 520, 2016 WL 690997 (Fla. 1st DCA 2016) (Table).

In Appellant's first ground, he argued that his attorney was ineffective for failing to promptly advise him of the State's notice of intent to seek the PRR designation. He alleged that the notice was sent to defense counsel on May 6, 2015, but counsel did not open the e-mail until May 8, 2015. He asserted that she did not inform him of the notice until jury selection on May 11, 2015. He claimed that if his attorney had timely advised him of the PRR notice, he would have had an opportunity to review the evidence and determine that going to trial was not worth risking a PRR sentence, and he would have accepted the State's eight-year plea offer. He alleged that the State would not have withdrawn the offer, the trial court would have approved the offer, and the sentence imposed would have been less than the twenty-five-year prison sentence he ultimately received.

A claim of ineffective assistance of counsel is governed by Strickland v. Washington , 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove ineffective assistance, an appellant must allege that (1) the specific acts or omissions of counsel which fell below a standard of reasonableness under prevailing professional norms, and (2) the appellant was prejudiced by these acts or omissions such that the outcome of the case would have been different. See id. at 690-692, 104 S.Ct. 2052.

"If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Lafler v. Cooper , 566 U.S. 156, 168, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). In the context of plea negotiations, the first prong of the Strickland analysis can be satisfied by allegations that "counsel performed deficiently in (1) advising a defendant to reject a plea offer, (2) misadvising the defendant about the maximum penalty faced, or (3) failing to convey a plea offer." Sirota v. State , 95 So.3d 313, 319 (Fla. 4th DCA 2012), quashed on other grounds by

State v. Sirota , 147 So.3d 514 (Fla. 2014). To establish prejudice, a defendant must allege that

(1) he or she would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (3) the court would have accepted the offer, and (4) the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.

Alcorn v. State , 121 So.3d 419, 430 (Fla. 2013) (citing Missouri v. Frye , 566 U.S. 134, 148, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) ). "When determining whether defense counsel's misadvice concerning a plea prejudiced the defendant, the trial court must consider the circumstances ‘at the time of the offer and what would have been done with proper and adequate advice.’ " Parenti v. State , 225 So.3d 949, 951 (Fla. 5th DCA 2017) (quoting Alcorn , 121 So.3d at 432 ).

Here, Appellant's allegations of prejudice are facially sufficient. However, with regard to the deficiency prong, he does not allege that counsel failed to convey the eight-year plea offer, neglected to advise him of the penalties he faced, or otherwise misadvised him in connection with plea negotiations. Rather, he claims that counsel did not advise him of the PRR notice promptly enough to allow him to review the evidence and decide whether to accept the plea offer. Even assuming arguendo such allegations could establish a deficient performance on counsel's part, this claim is factually meritless.

At the beginning of jury selection on Monday, May 11, 2015, defense counsel asked for permission to place some information on the record. She explained that she had visited Appellant in jail on the preceding Wednesday, but he terminated the visit before she could convey all of the information she intended to provide. She subsequently received the PRR notice on Friday, May 8, 2015. She advised Appellant about the notice the morning of jury selection. She wrote him a note explaining the designation and how it would result in him serving 100% of the maximum sentence, and noted that one of his charged offenses was a first-degree felony punishable by life in prison. She also explained that there was a great deal of evidence against him and a strong likelihood that he would be convicted at trial. She informed him that if he was convicted, the judge would have no discretion to impose anything other than a life sentence.

In open court, defense counsel referred to the PRR designation as a "game changer" and urged Appellant to accept the eight-year plea offer to avoid spending the rest of his life in prison. She indicated the offer had been open for "many, many months," and the State was still willing to allow him to accept it that morning. She acknowledged that Appellant was upset with how she was handling the case, but reminded him that they had assessed his trial prospects by reviewing the incriminating surveillance video and the other evidence against him.

At that point, Appellant interrupted by saying, "My face was not on the video." Counsel responded that there was DNA evidence and an identification by the clerk of the convenience store. Appellant replied, "That's weak." Defense counsel reiterated that if Appellant proceeded to trial, he would most likely be convicted, and the judge would not have discretion to consider what an appropriate sentence would be given the nature of the offenses and Appellant's history; instead, the PRR designation would remove all discretion and he would be sentenced to life in prison. She advised, "[S]low down and think about what you are doing." Appellant responded by asking the judge to remove counsel from the case, because he did not trust her. He complained that she was "scared to go to trial" and had repeatedly tried to persuade him to take the eight-year plea offer. The judge found no grounds to remove counsel from the case, so Appellant elected to represent himself.

Under these circumstances, this claim is refuted by the record. Defense counsel advised Appellant of the PRR notice on the next business day after she received it. By that time, she had already reviewed the incriminating evidence with him, but Appellant believed that her reluctance to proceed to trial was unreasonable. With the eight-year plea offer still available, counsel fully explained the PRR designation and she commendably warned Appellant in the direst possible terms that he was likely to lose at trial and spend the rest of his life in prison.

Despite this, Appellant rejected counsel's advice, declined to accept the eight-year plea offer, and proceeded to trial pro se . Given this information, counsel did not perform deficiently. She provided all of the information Appellant needed to consider the eight-year plea offer while it was still available. Even after he was fully advised of the pitfalls of his case and the severity of his potential sentence, the record reflects that Appellant had no intention of accepting the offer. Therefore, this claim was properly denied.

In Appellant's second ground, he argued that counsel was ineffective for failing to file a pretrial motion to suppress. This ground contained two subclaims. In subclaim (a), he alleged that a motion to suppress should have been filed on the basis that the detective who stopped him after the robbery had no probable cause to do so, given the victim's flawed and vague description of the suspect. In subclaim (b), Appellant asserted that the show-up identification was impermissibly suggestive, because he was in a police car and with a police officer at the time, which may have given the victim an impression of his guilt. He claimed that counsel should have also sought suppression of the voice identification on this basis. In his motion for rehearing after his amended motion was denied, he explained for the first time that counsel should have sought suppression of the evidence seized from his person—a knife, gloves, cigarettes, money, and a black plastic bag.

Insofar as Appellant argued in subclaim (a) that a motion to suppress should have been filed based upon the invalidity of his detention by the detective, this claim is facially insufficient. A defendant cannot show that counsel provided ineffective assistance by failing to file a motion to suppress if the motion would have been meritless. Johnston v. State , 63 So.3d 730, 740 (Fla. 2011). Here, Appellant failed to provide any factual allegations about his encounter with the detective that would have supported a motion to suppress. Furthermore, he improperly identified the evidence that would have been subject to suppression for the first time in his motion for rehearing. See Fla. R. Crim. P. 3.850(j) ("A motion for rehearing must be based on a good faith belief that the court has overlooked a previously argued issue of fact or law or an argument based on a legal precedent or statute not available prior to the court's ruling." (emphasis added)). As this...