DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MAYKEL TORRES,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D20-299
[July 1, 2020]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Bernard Bober, Judge;
L.T. Case No. 13-1742 CF10A.
Carla P. Lowry of Lowry At Law, P.A., Fort Lauderdale, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Maykel Torres appeals the summary denial of his rule 3.850 motion for
post-conviction relief, in which he raised two grounds for relief. We affirm
the summary denial of ground two without comment but reverse and
remand for an evidentiary hearing on ground one.
Torres was convicted of burglary of a dwelling and sentenced to twenty
years in prison as a habitual felony offender, with a fifteen-year mandatory
minimum as a prison releasee reoffender, to be followed by two years of
community control and eight years of probation. The conviction and
sentence were affirmed on direct appeal. Torres v. State,
227 So. 3d 595
(Fla. 4th DCA 2017) (unpublished table decision).
In ground one of his rule 3.850 motion, Torres claimed counsel was
ineffective for failing to advise him that the state would be able to rely on
the “stealthy entry” inference to prove intent. See § 810.07(1), Fla. Stat.
(2013) (“In a trial on the charge of burglary, proof of the entering of such
structure or conveyance at any time stealthily and without consent of the
owner or occupant thereof is prima facie evidence of entering with intent
to commit an offense.”). He alleged that this inference negated his sole
defense, and if counsel had properly advised him about it, he would have
accepted the state’s plea offer of nine years in prison instead of going to
trial.
Torres’s claim was sufficiently pleaded and was not refuted by the
record. He alleged a specific deficiency in counsel’s advice, namely that
counsel misadvised him as to the likelihood that he would be convicted at
trial by failing to advise him about the stealthy entry inference. See Mook
v. State, No. 4D19-1422, 45 Fla. L. Weekly D689 (Fla. 4th DCA Mar. 25,
2020); Brice v. State,
162 So. 3d 81, 82-83 (Fla. 4th DCA 2014). He also
alleged a reasonable probability that he would have accepted the plea, and
would have received a lesser sentence, if counsel had properly advised
him. See Alcorn v. State,
121 So. 3d 419, 430 (Fla. 2013). 1
Accordingly, we reverse the summary denial of ground one and remand
for an evidentiary hearing.
Affirmed in part; reversed in part and remanded.
LEVINE, C.J., MAY and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
1 We reject the state’s argument that Torres cannot establish prejudice because
the record reflects that counsel advised him to enter the plea. That fact does not
refute Torres’s claim that he would have accepted the plea if counsel had advised
him about the stealthy entry inference.
2
