IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

ALAN D

. TAYLOR

, Appellant

,

v. Case No. 5D 18

- 295

STATE OF FLORIDA

, Appellee

.
________________________________/

Opinion filed June 8, 2018

3.850 Appeal from the C ircuit Court for Putnam County

, Scott C. Dupont , Judge.

Alan D. Taylor, Daytona Beach, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.

LAMBERT

, J

.

Alan D. Taylor appeals the summary denial of his motion for postconviction relief

filed under Florida Rule of Criminal Procedure 3.850. Taylor ’s sole ground for relief

asserted in hi s motion was that his trial c ounsel was ineffective for failing to convey to him

the State’s favorable p lea offer. Because this claim was not sufficiently pleaded, we2 reverse the postconviction court’s order and remand to allow Taylor an opportunity to

am end his motion.

In 2004, following a jury trial, Taylor was convicted o f planting a hoax bomb and

robbery. He was sen ten ced to serve fifteen years in prison on each count, with the

sentence s running concurrently on each count

, but consecutively to a lengthy prison

sentence that Taylor was serving out of Alachua County. Taylor’s convictions and

sentences were affirmed on direct appeal without opinion. See Taylor v. State , 923 So.

2d 1184 (Fl a . 5th DCA 2006).

I n June 2017, Ta ylor filed the present motion alleging that in August 2015

, he first

became aware of a plea offer made by the State to his counsel shortly before trial in wh ich

the State offer ed to resolve the case with Taylor serving a thirteen

- year prison sentence

on co unt one, to run concurrent ly with his Alachua County prison sentence, and serving

t wo years in prison on count two, consecutive ly to his prison sentence from Alachua

County . Taylor averred that his counsel never informed him about t his pl e a offer “at any

time before, during, or after trial.”

The postconviction court ordered the S tate to respond to Taylor’s motion, which it

did. The S tate asserted that Taylor’s motion was untimely under rule 3.850 because it

was filed more than two years after his judgment and sentence became final and Taylor

could not show under the rule 3.850(b)(1) newly discovered fact exception to this two

year filing requirement that he could not have discovered the aforementioned plea offer

by the exercise of due diligence

. I n denying Taylor’s motion, the court agreed with the

S tate that Taylor “was less than diligent in his untimely pursuit.”3 The failure to convey a favorable plea offer to a defendant in a criminal case can

constitute ineffective assistance of counsel. Cla rk v. State , 236 So. 3d 481, 483 (Fla. 4th

DCA 2018) (citing Jacques v. State , 193 So. 3d 1065 , 1066 (Fla. 4th DCA 2016)). To

adequately plead this claim, a defendant must allege “that (1) he or she would have

accepted the offer had counsel advised the de fendant 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 tha t in fact were imposed.” Alcorn v. State , 121 So. 3d

419, 430 (Fla. 2013).

Here, Taylor ’ s rule 3.850 motion was facially insufficient under Alcorn because he

failed to allege that the prosecutor would not have withdrawn the plea offer. Under these

circumstances, Taylor must be given at least one opportunity to correct the deficiency in

his motion , unless it is apparent that the defect cannot be corrected. See Fla. R. Crim.

P

. 3.850(f); Lamb v. State , 202 So. 3d 118, 120 (Fla. 5th DCA 2016) (citing Luck e

y v.

State , 979 So. 2d 353, 355 (Fl a . 5th DCA 2008 ) ). Because Taylor had not previously

sought or been given leave to amend his rule 3.850 motion

, and because the pleading

deficiency in his motion is likely correctable, he should be given the chance to do so.

Accordingly, we reverse the summary denial and remand with directions tha t the

postconviction court provide Taylor with sixty days to amend his motion, if, in good faith,

he can amend it

. 1

1 For the benefit of the postconviction court on remand, we briefly address two other matters. First, if Taylor timely files a legally sufficient amended motion for postconviction relief, and the court again summarily denies the motion based on the records in the case, it must attach to its final ord er “ that portion of the files and records that conclusively shows that [ Tay lor ] is entitled to no relief

. ” See Fla. R. Crim. P.4 REVERSED and REMANDED, with directions.

COHEN, C.J.

, and EDWARDS , J., concur.

3.850(f)(5). Other wise, an evidentiary hearing is required to resolve the motion, including determining whether Taylor exercis ed due diligence in discovering the plea offer. The present order had no record attachments. Second , the court’s indication in its denial order that Taylor essentially failed to establish under Wright v. State , 857 So. 2d 861 ( Fla. 2003 )

, that “the newly discovered evidence is of such a nature as to probably produce an acquittal” has no application here as Taylor’s “newly discovered” claim is based upon an al legedly undisclosed plea offer. See Petit

- Homme v. State , 205 So. 3d 848 , 849 (Fla. 4th DCA 2016) (reversing a summary denial of a newly discovered plea offer claim and remanding for further proceedings to address whether the defendant could have learned of the offer within the two

- year time limit of rule 3.850).