Dominique Brice v. State , 2014 Fla. App. LEXIS 15245 ( 2014 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
DOMINIQUE BRICE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D13-4192
[October 1, 2014]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Nineteenth Judicial Circuit, Indian River County; Robert L. Pegg,
Judge; L.T. Case No. 312008CF000743A.
Dominique Brice, Florida City, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher,
Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Dominique Brice appeals an order summarily denying her rule 3.850
motion. We reverse as to ground one, and otherwise affirm.
Brice was charged with two counts of vehicular homicide after she lost
control of her vehicle and struck and killed two men, who had been
standing at the side of the interstate highway beside their motorcycles.
Although she and her brother—a passenger in her vehicle—testified at trial
that external traffic conditions caused her to lose control, numerous state
witnesses testified that she was speeding, weaving, and driving recklessly
before the accident. She was found guilty as charged and sentenced to
222 months (18.5 years) in prison, the lowest permissible sentence
generated by her Criminal Punishment Code scoresheet.1
1The sentence was structured as 15 years in prison for count I, and 3.5 years in
prison, followed by 5 years of probation, for count II.
In ground one, Brice claims that trial counsel was ineffective in failing
to properly convey a five-year plea offer allegedly made by the state. She
asserts that she rejected the offer because counsel advised her to do so,
failing to properly evaluate the facts of the case and explain the likelihood
of a conviction and lengthy sentence. She alleged that there was a
reasonable probability that she would have accepted the offer and that the
plea would have been entered without the prosecutor withdrawing it or the
judge refusing to accept it. She explained that, despite the overwhelming
evidence that she had caused the death of the victims by recklessly
operating a motor vehicle, counsel told her the state “had no case” and
told her to “reject the plea offer.” Counsel also allegedly failed to inform
her that she could avoid the lifetime suspension of her driver’s license by
accepting the offer.
In Morgan v. State, 991 So. 2d 835 (Fla. 2008), the supreme court held
that an allegation that counsel was ineffective for misadvising the
defendant to reject a plea offer could entitle a defendant to an evidentiary
hearing. But, “[s]ome specific deficiency on the part of counsel must be
alleged[,]” such as, an “allegation that counsel’s assessment of the chances
of success at trial was unreasonable under the facts and circumstances of
[the] case or that counsel had not investigated or otherwise was not
familiar with the case.” Id. at 841.
After the Supreme Court of the United States issued Lafler v. Cooper,
132 S. Ct. 1376 (2012), and Missouri v. Frye, 132 S. Ct. 1399 (2012), the
Florida Supreme Court decided Alcorn v. State, 121 So. 3d 419 (Fla. 2013).
Now, to show prejudice in such cases, the defendant must demonstrate a
reasonable probability that: (1) the defendant 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 would have been less severe than the
judgment and sentence imposed. Id. at 430.
Brice made all these allegations, including that counsel’s assessment
of the chances of success at trial was unreasonable under the facts and
circumstances of this case. The motion specified that counsel should have
been aware of the strength of the state’s case from witness statements and
depositions. She attached a summary of the testimony given by the state’s
witnesses at trial. We conclude that the claim was sufficiently pleaded
and reverse the summary denial of this ground for further proceedings.
We affirm the summary denial of Brice’s remaining grounds without
further discussion.
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Affirmed in part. Reversed in part and remanded.
WARNER, TAYLOR and MAY, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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