RAUL COSME v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
RAUL COSME,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
Nos. 4D17-464, 4D17-466 and 4D17-467
[December 13, 2017]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Edward H. Merrigan,
Judge; L.T. Case Nos. 2001-021390 CF10C, 2002-000761 CF10A and
2006-017013 CF10A.
George E. Reres of ReresLaw, LLC, Fort Lauderdale, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
We reverse the summary denial of Raul Cosme’s Florida Rule of
Criminal Procedure 3.850 motion for postconviction relief and remand for
an evidentiary hearing. Cosme’s claim that trial counsel failed to convey
a plea offer is facially sufficient and is not refuted by the record.
In one of the three cases on appeal, Cosme was charged with two counts
of attempted first degree murder with a firearm and one count of shooting
into an occupied vehicle. Following a jury trial, he was convicted of two
counts of attempted second degree murder and one count of shooting into
an occupied vehicle. In the other two cases, Cosme was alleged to have
violated his probation, imposed after he pleaded guilty to two counts of
robbery with a firearm and one count of robbery with a weapon. Following
a final hearing, he was found in violation and his probation was revoked.
Cosme was initially sentenced to life in prison in all three cases. In two
separate appeals, we reversed and remanded for resentencing. Cosme v.
State, 111 So. 3d 280, 282 (Fla. 4th DCA 2013); Cosme v. State, 89 So. 3d
1096, 1097-98 (Fla. 4th DCA 2012). Cosme was resentenced to thirty
years in all three cases.
In this timely rule 3.850 motion, Cosme claimed trial counsel failed to
convey a global plea offer of fifteen years in prison. Counsel told Cosme
about the offer only after the State revoked it and offered life in prison.
Counsel said he did not tell Cosme about the fifteen-year offer because he
wanted to negotiate an even lighter sentence. Cosme alleged that he would
have accepted the fifteen-year offer if counsel had timely conveyed it.
The State concedes that Cosme’s claim is facially sufficient under
Alcorn v. State, 121 So. 3d 419, 433 (Fla. 2013). But the State argues it is
“inherently incredible” that the prosecution would have offered Cosme
fifteen years for the serious crimes charged in these cases, especially
considering that it later sought a life sentence. See Capalbo v. State, 73
So. 3d 838, 840 (Fla. 4th DCA 2011) (“A postconviction court is not
required to hold hearings on absurd claims or accept as true allegations
that defy logic and which are inherently incredible.”).
We reject the State’s argument. The State in its response below
conceded that the alleged offer must have been made very early in the case,
within two months after the new charges were filed. According to Cosme,
at that time the State’s evidence was sparse and his co-defendants had
not yet entered pleas and agreed to testify against him. It is not inherently
incredible that the State would have offered fifteen years early in the case,
perhaps in an effort to secure Cosme’s testimony against his allegedly
more culpable co-defendants, and then later sought a life sentence when
its case was stronger.
Because Cosme’s claim is facially sufficient and is not refuted by the
record, we reverse and remand for an evidentiary hearing.
Reversed and remanded.
TAYLOR, CONNER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2