DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

WILLIE B. CAREY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D15-1015

[October 7, 2015]

Appeal of order denying rule 3.850 motion from the Circuit Court for 

the Fifteenth Judicial Circuit, Palm Beach County; Jack Schramm Cox, 

Judge; L.T. Case No. 502011CF007136AXMB.

Willie B. Carey, Blountstown, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. 

Acuna, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Willie B. Carey appeals the order summarily denying his rule 3.850 

motion. We reverse the summary denial of ground three and remand with 

directions that he be allowed an opportunity to amend. We affirm the 

summary denial of the other grounds without further comment. 

In his third ground, Carey alleged that ineffective assistance of his 

counsel resulted in his rejecting a favorable plea offer. He alleged counsel 

failed to advise him that he qualified for enhanced sentencing as a Prison 

Releasee Reoffender (PRR) and as a habitual felony offender (HFO); he did 

not learn he qualified until the State filed notices on the date his trial 

began. He further alleged counsel did not advise him of the maximum 

sentences he could receive as a PRR and a HFO, or that he would have to 

serve 100 percent of his sentence as a PRR. He also alleged that counsel 

misadvised him he undoubtedly would win his motion to suppress, and 

the prosecution would have no substantial evidence to support a finding 

of guilt, so he would win at trial. He lastly alleges that if he had been 

aware his motion to suppress could be denied, or of the penalties he 

actually faced, he would have accepted the State’s offer.
2

Ground three was facially insufficient under Alcorn v. State, 121 So. 3d 

419 (Fla. 2013). In Alcorn, the supreme court discussed what a defendant 

must allege and prove in order to demonstrate prejudice in connection with 

a claim that counsel’s ineffectiveness caused the defendant to lose an 

advantageous plea offer. Id. at 429-30 (citing Lafler v. Cooper, 132 S. Ct. 

1376 (2012), and Missouri v. Frye, 132 S. Ct. 1399 (2012)):

Specifically, to establish prejudice, the defendant must allege 

and prove a reasonable probability, defined as a probability 

sufficient to undermine confidence in the outcome, 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. 

Id. at 430 (citing Frye, 132 S. Ct. at 1410).

When a motion is insufficient, the movant ordinarily is entitled to at 

least one opportunity to amend, pursuant to Spera v. State, 971 So. 2d 

754 (Fla. 2007). E.g., Ramos v. State, 141 So. 3d 643, 645 (Fla. 4th DCA 

2014). In response to this court’s order to show cause, the State agrees 

that Carey should be permitted an opportunity to amend.

Accordingly, we reverse and remand for the trial court to allow Carey 

an opportunity to amend ground three to correct the pleading deficiencies,

if he can do so in good faith.

Affirmed in part, Reversed in part, and Remanded.

CIKLIN, C.J., MAY and DAMOORGIAN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.