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Rish v. State
Citation: 268 So. 3d 233Docket: Case No. 5D18-3657
Court: District Court of Appeal of Florida; April 12, 2019; Florida; State Appellate Court
Arthur M. Rish is appealing the summary denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The court affirms the denial on all grounds except for ground four, where Rish claims ineffective assistance of counsel for advising him to reject a plea offer from the State. Rish asserts that his counsel communicated the plea offer but incorrectly advised him to reject it and did not inform him about the potential for being sentenced as a habitual felony offender (HFO). The trial court dismissed ground four, finding it conclusively refuted by the record, citing that Rish was informed at a hearing about the State's HFO designation request, that the plea offer did not encompass one of Rish's charges, and that the offer was subsequently withdrawn. The appellate court disagrees, stating that the record does not conclusively refute Rish's claim. It references the standard established in Strickland v. Washington, which requires showing both deficient performance by counsel and resultant prejudice. The court emphasizes that prejudice should be evaluated based on the circumstances at the time of the plea offer, not after its withdrawal, and notes that the change of plea and sentencing transcript does not confirm that the offer excluded all charges against Rish. However, the appellate court also finds that Rish's claim is facially insufficient because he did not specify how his counsel's performance was deficient or how he was prejudiced according to the criteria set forth in Alcorn v. State. Consequently, the court reverses the denial of ground four and remands the case for the trial court to allow Rish to amend his claim to address the deficiencies, as permitted by Spera v. State. The court affirms the denial of all other grounds.