FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-4102
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DARRYL EMERY GORDON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Duval County.
Bruce Anderson, Judge.
October 17, 2019
B.L. THOMAS, J.
Darryl Gordan seeks review of the order denying his motion
for postconviction relief. We affirm for the reasons set forth below.
We reject all other arguments not discussed.
In 2015, a jury found Appellant guilty of aggravated assault
with a deadly weapon, a lesser-included charge of attempted
murder in the second degree. The criminal conduct involved
shooting into a car in which the victim was sitting. Appellant
asserted the victim was not in the car; the victim testified
otherwise. Appellant was sentenced to twenty years’
imprisonment with twenty-year mandatory-minimum term for the
aggravated assault with a deadly weapon, to be served
concurrently under the State’s “10-20-Life” statute as it then
applied. This Court affirmed his conviction and sentence per
curiam. Gordon v. State,
194 So. 3d 1023 (Fla. 1st DCA 2016)
(Table).
Appellant filed a timely motion for postconviction relief
pursuant to Florida Rule of Criminal Procedure 3.850 and argued
that counsel was ineffective for misadvising him to reject a
favorable plea offer. After receiving a response from the State, the
lower court summarily denied the motion.
On appeal, Appellant argues that his counsel was ineffective
for misadvising him about his likelihood of acquittal, which
resulted in Appellant’s refusal to enter into plea negotiations with
the State. Appellant discusses four negotiations between his
counsel and the State, where the State told counsel that if
Appellant made a plea offer, the State would consider it without
the mandatory minimum provision, and that even a “single-digit”
sentence would be considered.
Appellant contends that counsel told him that he would be
acquitted at trial because he had a strong defense. Due to this
advice, Appellant argues he “rejected” the State’s offer to enter into
a plea.
“If a plea bargain has been offered, a defendant has the right
to effective assistance of counsel in considering whether to accept
it.” Lafler v. Cooper,
566 U.S. 156, 168 (2012). To establish
prejudice, a defendant must allege that “(1) he . . . would have
accepted the offer had counsel advised [him] 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.” Alcorn v.
State,
121 So. 3d 419, 430 (Fla. 2013) (citing Missouri v. Frye,
132
S. Ct. 1399 (2012)).
This Court considered a similar argument to that raised by
Appellant in Carter v. State,
225 So. 3d 881 (Fla. 1st DCA 2017).
In Carter, the defendant alleged his attorney misadvised him
about the likelihood of his defense succeeding at trial and due to
this bad advice he refused to consider plea negotiations involving
more than 10 years in prison or an open plea of guilty.
Id. at 882.
This Court found that this claim was too speculative to merit relief
under Strickland v. Washington,
466 U.S. 668 (1984). Id. at 883.
Because the State never conveyed a plea offer, this Court
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concluded that the Alcorn test could not apply, and the defendant
could not establish prejudice. Id.
Here, as in Carter, the State did not make a plea offer.
Gordon’s counsel’s notes indicate that counsel relayed the State’s
willingness to consider an offer. Counsel told Appellant that if he
decided he was interested, counsel would fashion an offer. But
Appellant responded that he would prefer to proceed to trial,
despite counsel’s warning Appellant that the State could add a
charge of criminal mischief and, if convicted, Appellant would face
at least a ten-year prison sentence on that charge alone.
To the extent the State indicated a willingness to entertain a
plea, Appellant rejected the opportunity. Thus, because there was
no actual offer made by the State, under Alcorn Appellant cannot
show he was prejudiced by his counsel’s alleged deficient
performance.
AFFIRMED.
LEWIS and ROBERTS, 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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Darryl Emery Gordon, pro se, Appellant.
Ashley Moody, Attorney General, Amanda D. Stokes, Assistant
Attorney General, Tallahassee, for Appellee.
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