FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-3309

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DARRION R. KITCHEN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Duval County.

Angela M. Cox, Judge.

March 13, 2019

WOLF, J.

Appellant challenges the summary denial of his 

postconviction motion filed pursuant to Florida Rule of Criminal 

Procedure 3.850. We affirm as to ground 1 without comment. We 

reverse and remand for further proceedings for grounds 2 and 3. 

In ground 2, appellant argued his counsel was ineffective for 

failing to sufficiently advise him regarding a plea offer for 7 years 

in prison. He asserted counsel failed to tell him that 7 years in 

prison was the minimum sentence that he could receive under 

the guidelines if he were found guilty. If he had been properly 
2

advised, he argued he would have accepted the offer,1 the State 

would not have revoked the offer, the trial court would have 

accepted the offer, and he would have received a lesser sentence 

than he ultimately received. 

Appellant’s claims were legally sufficient. Defense counsel is 

required to “advise the defendant of . . . all pertinent matters

bearing on” the decision to accept or reject a plea offer, including 

the possible range of sentencing. Fla. R. Crim. P. 3.171(c)(2)(B). 

See also Depriest v. State, 177 So. 3d 701 (Fla. 1st DCA 2015); 

Robinson v. State, 148 So. 3d 535, 537 (Fla. 2d DCA 2014). Thus,

we remand either for the court to attach portions of the record 

conclusively refuting these claims or to conduct an evidentiary 

hearing. 

For ground 3, appellant alleged counsel was ineffective for 

misadvising him that his testimony was not needed. Appellant 

was charged with sexual battery, and his theory of defense was 

that the sexual encounter was consensual. However, he argued 

counsel failed to appreciate that the defense lacked any direct 

evidence of consent apart from appellant’s testimony. Appellant 

argued if he had been properly advised, he would have testified 

that the sex was consensual, that the victim initiated the sex, 

and that she expressed regret afterwards because she was afraid 

her boyfriend would find out. He argues his testimony probably 

would have resulted in a different verdict. 

The postconviction court found the record conclusively 

refuted appellant’s claim because during a colloquy, appellant 

stated he understood that it was his decision whether or not to 

testify. However, the supreme court has clarified that even where 

the record conclusively demonstrates that “the defendant 

knowingly and voluntarily decided not to testify. . . . [a] separate 

question is whether [counsel’s] advice [to the defendant], even if 

voluntarily followed, was nevertheless deficient because no 

 1 Appellant explicitly alleged that he rejected the State’s 

offer: “Mr. Kitchen alleges that he rejected the State’s plea offer 

and proceeded to trial because he was not fully informed.” 

(Emphasis added).
3

reasonable attorney would have discouraged [the defendant] from 

testifying.” Lott v. State, 931 So. 2d 807, 818-19 (Fla. 2006). 

Here, appellant did not challenge the voluntariness of his 

decision not to testify. Instead, he argued counsel’s advice that he 

should choose not to testify was deficient performance. The 

postconviction court did not address this argument. We reverse 

and remand for the court either to attach portions of the record 

refuting this claim or to hold an evidentiary hearing.2

AFFIRMED in part, REVERSED and REMANDED in part.

LEWIS and RAY, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Darrion R. Kitchen, pro se, Appellant.

Ashley B. Moody, Attorney General, Tallahassee, for Appellee.

 2 We note the State argues that appellant could not show 

prejudice as to this ground because even if he had testified, his 

theory of defense that the sexual encounter was consensual 

would not have been successful. The State asserts he was charged 

with the sexual battery of a minor, and consent is not a defense to 

that charge. The State is mistaken. Appellant was charged with 

sexual battery on a person twelve years of age or older as 

prohibited by section 794.011(5), Florida Statutes. However, the 

State did not allege that the victim was less than 18 years old. 

The victim testified that she was 21 years old at the time of trial, 

which occurred 6 months after the incident took place.