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

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

RENNY ARMSTRONG, ) ) Appellant, ) ) v. ) Case No. 2D14-133 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________ ) Opinion filed September 24, 2014.

A ppeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Collier County; Ramiro Manalich, Judge. Renny Armstrong, pro se.

SILBERMAN, Judge. Renny Armstrong appeals the summary denial of his postconvict ion

motion filed under Florida Rule of Criminal Procedure 3.850. W e affirm the denial of grounds two, three, and four without comment, but we reverse th e denial of ground one and remand for further proceedings. In 2010, Armstrong entered an open plea to burglary (count on e), grand theft (count two), fleeing to elude law enforcement (count thre e), and driving while- 2 - license suspended or revoked (count four). He was sentenced to fifteen years in prison as a prison releasee reoffender (PRR) with a fifteen-year manda tory minimum on count one, to five years in prison on count two, to fifteen years in prison on count three, and to

time served on count four. He did not appeal his judgment and sentence but instead filed this timely postconviction motion. In ground one of his motion, Armstrong claimed that his forme r counsel was ineffective for failing to inform him of the maximum senten ce and of the possibility of a fifteen-year mandatory minimum sentence as a PRR during pl ea negotiations, resulting in the rejection of a favorable plea offer of forty-e ight months in prison. He maintained that had he been properly advised, he would have acc epted the offer of forty-eight months. He argued that although the State had not filed a notice of intent to seek PRR designation, counsel had an obligation to advise him o f the possibility of such a designation to allow him to make an informed decision about t he State's offer. He asserted that after he rejected the offer, the State filed a PR R notice. In a response that was adopted and incorporated by the postco nviction court, the State asserted that although Armstrong's claim is fa cially insufficient, it should

be denied without leave to amend because he would be unable to amend it in good faith to establish prejudice. Citing Scheele v. State, 953 So. 2d 78 2, 785 (Fla. 4th DCA 2007), the State maintained that because the trial court advise d Armstrong of the maximum sentence and of the mandatory minimum as a PRR at the p lea hearing, he could not rely on counsel's all eged misadvice. Although we agr ee Armstrong's motion is facially insufficient under Alcorn v. State, 121 So. 3d 419 (Fla. 2013), we disagree that Armstrong was not entitled to leave to amend ground one.- 3 - In Alcorn, the supreme court held that to establish prejudice in a claim of ineffective assistance based on misadvice resulting in the reje ction of a favorable plea offer, the defendant must demonstrate that: (1) he or she would have acc epted 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 422 (citing Missouri v. Frye, 132 S. Ct. 1399 (2012), an d Lafler v. Cooper, 132 S. Ct. 1376 (2012)). Armstrong failed to allege that the prosecutor would not have withdrawn

the offer and that the court woul d have accepted it, prongs two and three of Alcorn. See Ramos v. State, 39 Fla. L. Week ly D1270 (Fla. 4th DCA June 18, 2014). Because Armstrong's motion was pending at the time Alcorn was decided, the postconviction court was required to apply Alcorn in resolving the claim. See Odegaard v. State, 137 So. 3d 505, 513 (Fla. 2d DCA 2014) (LaRose, J., concurring) ("H owever, recent cases suggest an expansion of the 'pipeline' analysis to new law that applies to postconviction claims where the resolution of the postconviction claim was sti ll pending when the new case was decided."); see also Barthel v. State, 882 So. 2d 1054 , 1055 (Fla. 2d DCA 2004) ("Because this appeal was in the 'pipeline' at the time N elson [v. State, 875 So. 2d 579 (Fla. 2004),] became final, Barthel is entitled to the b enefit of the controlling law in Nelson in effect at the time of appeal."). Moreover, the State applied an incorrect prejudice analysis. In the context of ineffective assistance resulting in the rejection of a plea offer, "[p]rejudice . . . is determined based upon a consideration of the circumstances as v iewed at the time of- 4 - the offer and what would have been done with proper and adequate advice. " Alcorn, 121 So. 3d at 432. The State incorrectly focused on what occur red after Armstrong rejected the plea offer; what happened after did not rectify co unsel's failure to provide Armstrong with all of the information necessary to make an info rmed decision on whether to accept the offer. Als o, this court has expressly re fused to follow Scheele and has held that a trial court's informing the defendant of th e maximum sentence would not necessarily have put him on notice that he could not rely o n counsel's advice. See Ely v. State, 13 So. 3d 167, 169 (Fla. 2d DCA 2009). See also Singfield v. State, 74 So. 3d 127, 129 (Fla. 2d DCA 2011) ("However, the court's advice to Singfield was clearly qualified: the court informed him that in all likelihood, he would be sentenced to sixtyfive months in prison, despite having previously informed him o f the maximum sentences. The trial court's statement placed Singfield on not ice that he could not rely on counsel's statements to the contrary."). Accordingly, we reverse and remand for the postconviction court to allow Armstrong an opportunity to amend ground one if he can do so in good faith. See Fla. R. Crim. P. 3.850(f)(3); Spera v. State, 971 So. 2d 754 (Fla. 2 007). Affirmed in part, reversed in part, and remanded.

KELLY and VILLANTI, JJ., Concur.