GARY ALEXANDER vs STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: May 26, 2023
• Docket: 23-0054
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

GARY ALEXANDER,

Appellant, Case No. 5D23-54 v. LT Case No. 2015-CF-7298

STATE OF FLORIDA,

Appellee.

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Opinion filed May 26, 2023

3.850 Appeal from the Circuit Court for Duval County, Gilbert L. Feltel, Jr., Judge.

Michelle R. Walsh, of Law Offices of Michelle Walsh, P.A., Miami, for Appellant.

Ashley Moody, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM. Appellant, Gary Alexander, sought relief pursuant to Florida Rule of

Criminal Procedure 3.850 arguing that he rejected the State’s pre-trial offer

of a six-year prison term because of the affirmative misadvice of his counsel.

His counsel’s misadvice was that the State would have to prove that

Appellant conspired with each and every member of the alleged conspiracy,

which is wrong. After rejecting the six-year offer, Appellant proceeded to

trial, was found guilty, and was sentenced to 20 years with the Department

of Corrections with a 15-year minimum mandatory term. Appellant is

satisfied with the lower court’s ruling that he was prejudiced by ineffective

assistance of counsel, but he appeals the order to the extent that it ordered

him to be retried rather than requiring the State to extend the six-year offer

again. We agree that the trial court erred in its selection of remedy and

remand for further proceedings.

The postconviction court held an evidentiary hearing and found that

Appellant met both prongs of Strickland v. Washington, 466 U.S. 668 (1984),

and the factors set forth in Alcorn v. State, 121 So. 3d 419, 430 (Fla. 2013),

thereby establishing ineffective assistance of counsel resulting in the

prejudice of rejecting a more favorable sentence through the offered plea

agreement. The postconviction court specifically found that Appellant would

have accepted the six-year offer, the State would not likely have withdrawn

2 the offer, and the court would probably have approved it. Nobody appeals

those findings. 1

In State v. Elma, 325 So. 3d 139 (Fla. 5th DCA 2020), this Court was

faced with similar circumstances of misadvice leading to the rejection of a

favorable plea offer, followed by a guilty verdict and the imposition of a far

less favorable sentence. In accordance with Lafler v. Cooper, 566 U.S. 156

(2012), we concluded that the postconviction court erred in scheduling Elma

for a new trial. We determined that the proper remedy was for the

postconviction court to order the State to reoffer the rejected plea deal. Id.

at 142.

According to both Lafler and Elma, if Appellant accepts the offer, the

trial court would then be required to exercise its discretion by determining

whether to vacate Appellant’s conviction and to then resentence him

pursuant to the plea agreement or to leave the conviction and original

sentence undisturbed. Id. (citing Lafler, 566 U.S. at 174). As this Court did

in Elma, we affirm the postconviction court’s order to the extent that it found

Appellant had been prejudiced by ineffective assistance of counsel, but

1 We reject the State’s tipsy coachman argument because it would require us to disregard certain findings set forth in the postconviction court’s order as if they were erroneous even though they are not challenged by appeal or cross-appeal.

3 reverse as to the remedy. We remand for further consideration consistent

with Elma, Lafler, and this opinion.

AFFIRMED IN PART, REVERSED IN PART; AND REMANDED FOR CONSIDERATION.

LAMBERT, C.J., EDWARDS and JAY, JJ., concur.