Michael Goldberg v. State of Florida

District Court of Appeal of Florida

Michael Goldberg v. State of Florida

182 So. 3d 847, 2016 Fla. App. LEXIS 172, 2016 WL 66604

CourtDistrict Court of Appeal of Florida

DecidedJanuary 6, 2016

Docket4D14-3426

StatusPublished

This text of 182 So. 3d 847 (Michael Goldberg v. State of Florida) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Michael Goldberg v. State of Florida, 182 So. 3d 847, 2016 Fla. App. LEXIS 172, 2016 WL 66604 (Fla. Ct. App. 2016).

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Opinion

PER CURIAM.

Michael Goldberg appeals the summary denial of his rule 3.850 motion for post-conviction relief, in which he alleged seven claims -of ineffective assistance of counsel. We reverse and remand for further .proceedings as to Goldberg’s claim that cojm-sel failed to convey a plea offer. We affirm the denial of Goldberg’s remaining elaims without comment.

Following a jury trial, Goldberg was convicted of two counts of battery on a law enforcement officer and aggravated fleeing and eluding. The trial court imposed two terms of ten years in prison as to the battery charges and one term of thirty years in prison as to the aggravated fleeing and eluding, all habitual felony offender sentences, to run concurrently.

Goldberg alleges that counsel failed to inform him of a plea offer of fifteen years in prison. He claims that if he had been *848 properly informed, he would have accepted the plea and would not have gone to trial. Acceptance of this offer would have resulted in a lesser sentence than the thirty years in prison he is currently serving.

Under the law in effect at the time his motion was filed, Goldberg’s claim is facially sufficient. Cottle v. State, 733 So.2d 963 (Fla.1999), required a defendant to allege only that (1) coun'sel failed to convey a plea offer; (2) he would have accepted the. plea offer but for counsel’s failure to convey it; and (3) acceptance of the plea would have resulted ,in a lesser sentence than was ultimately imposed. See id. at 967.

Because Goldberg’s claim .is facially sufficient under Cottle and is not conclusively refuted by the record, the trial court erred in summarily denying it. After Goldberg’s motion was filed, the Florida Supreme Court decided Alcorn v. State, 121 So.3d 419 (Fla.2013), in which it receded from Cottle and held that a defendant must also allege that the prosecutor would not have withdrawn the plea offer and the court would have accepted it. See Alcorn, 121 So.3d at 429-30. Accordingly,’ we reverse and remand for further proceedings as to Goldberg’s claim that counsel failed to convey a plea offer of fifteen years in prison.

. Affirmed in part, reversed in part, and remanded. , .

TAYLOR, CONNER and . KLINGEÑSMITH, JJ., concur.

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PER CURIAM.

Michael Goldberg appeals the summary denial of his rule 3.850 motion for post-conviction relief, in which he alleged seven claims -of ineffective assistance of counsel. We reverse and remand for further .proceedings as to Goldberg’s claim that cojm-sel failed to convey a plea offer. We affirm the denial of Goldberg’s remaining elaims without comment.

Following a jury trial, Goldberg was convicted of two counts of battery on a law enforcement officer and aggravated fleeing and eluding. The trial court imposed two terms of ten years in prison as to the battery charges and one term of thirty years in prison as to the aggravated fleeing and eluding, all habitual felony offender sentences, to run concurrently.

Goldberg alleges that counsel failed to inform him of a plea offer of fifteen years in prison. He claims that if he had been *848 properly informed, he would have accepted the plea and would not have gone to trial. Acceptance of this offer would have resulted in a lesser sentence than the thirty years in prison he is currently serving.

Under the law in effect at the time his motion was filed, Goldberg’s claim is facially sufficient. Cottle v. State, 733 So.2d 963 (Fla.1999), required a defendant to allege only that (1) coun'sel failed to convey a plea offer; (2) he would have accepted the. plea offer but for counsel’s failure to convey it; and (3) acceptance of the plea would have resulted ,in a lesser sentence than was ultimately imposed. See id. at 967.

Because Goldberg’s claim .is facially sufficient under Cottle and is not conclusively refuted by the record, the trial court erred in summarily denying it. After Goldberg’s motion was filed, the Florida Supreme Court decided Alcorn v. State, 121 So.3d 419 (Fla.2013), in which it receded from Cottle and held that a defendant must also allege that the prosecutor would not have withdrawn the plea offer and the court would have accepted it. See Alcorn, 121 So.3d at 429-30. Accordingly,’ we reverse and remand for further proceedings as to Goldberg’s claim that counsel failed to convey a plea offer of fifteen years in prison.

. Affirmed in part, reversed in part, and remanded. , .

TAYLOR, CONNER and . KLINGEÑSMITH, JJ., concur.

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182 So. 3d 847, 2016 Fla. App. LEXIS 172, 2016 WL 66604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michael-goldberg-v-state-of-florida-fladistctapp-2016.

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