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Malone v. State

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA
Feb 22, 2021
No. 1D20-3064 (Fla. Dist. Ct. App. Feb. 22, 2021)

Opinion

No. 1D20-3064

02-22-2021

TAYLOR A. MALONE, Appellant, v. STATE OF FLORIDA, Appellee.

Taylor A. Malone, pro se, Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee.


On appeal from the Circuit Court for Duval County.
Adrian G. Soud, Judge.

Appellant challenges the summary denial of his amended postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons stated below, we affirm.

In two cases, Appellant entered negotiated pleas of guilty to armed robbery with discharge of a firearm, aggravated battery with a firearm, attempted armed robbery with a firearm, and burglary of a dwelling. In exchange, the State agreed to a total sentence of 20 years in prison, with 20-year minimum mandatory terms on each count involving a firearm. On August 28, 2018, the trial court sentenced Appellant in accordance with the plea agreements.

In his amended postconviction motion, Appellant argued that counsel was ineffective due to counsel's misadvising Appellant he would not be eligible for youthful offender sentencing because armed robbery was a life felony. Contrary to his counsel's advice, Appellant asserted he would have qualified for youthful offender sentencing because armed robbery is a first-degree felony punishable by life, not a life felony. Had he known that he could pursue youthful offender sentencing, Appellant claimed he would not have entered the plea agreement and would have sought youthful offender sentencing. The trial court denied the motion, finding that any misadvice was cured by the plea colloquy. This appeal follows.

The trial court properly denied relief. Misadvice by counsel can be corrected by the trial court giving the defendant correct advice. Bluntson v. State, 98 So. 3d 626, 627 (Fla. 1st DCA 2012); see Alfred v. State, 998 So. 2d 1197, 1199-1200 (Fla. 4th DCA 2009) (holding that where the court engaged in an extensive plea colloquy explaining the sentencing range and the fact that an open plea carried no guarantees as to the defendant's sentence, the defendant could not demonstrate prejudice from counsel's alleged misadvice as to what the state would recommend). During Appellant's plea colloquy, the trial court explained youthful offender sentencing and noted that, even if Appellant qualified as a youthful offender, imposing a youthful offender sentence was left to the trial court's discretion. The trial court further explained that, because there was no guarantee Appellant would receive a youthful offender sentence, Appellant would be facing the possibility of a life sentence with a 25-year minimum mandatory. On hearing this information, Appellant affirmed that he understood and was choosing to enter the plea (and receive the negotiated sentence) because it was in his best interest. Following this exchange, Appellant affirmed that he did not need any more time to discuss his case or his plea with his attorney. On the record before us, any misadvice was cured during the plea colloquy.

Further, because the trial court explained that Appellant had the possibility of youthful offender sentencing, Appellant should have spoken up to seek clarification regarding any confusion he may have had. See Jones v. State, 680 So. 2d 585, 587 (Fla. 4th DCA 1996) ("Here, the judge correctly advised defendant as to the possibility of life imprisonment upon conviction as an habitual felony offender. Defendant indicated that he understood the nature of the potential sentence. If he had been told something different by his lawyer, defendant was obligated to speak up at the plea conference and ask the court about the discrepancy. He could not stand mute, accept the benefits of the plea, and then collaterally attack its voluntariness on the basis of something that should have been cleared up at the time of the plea."). He did not do so; instead, Appellant indicated to the trial court that he understood. Accordingly, the record refutes Appellant's claim, and the trial court did not err in denying the motion.

AFFIRMED. BILBREY, NORDBY, and LONG, JJ., concur.

Not final until disposition of any timely and authorized motion under Fla . R. App. P. 9.330 or 9.331. Taylor A. Malone, pro se, Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee.


Summaries of

Malone v. State

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA
Feb 22, 2021
No. 1D20-3064 (Fla. Dist. Ct. App. Feb. 22, 2021)
Case details for

Malone v. State

Case Details

Full title:TAYLOR A. MALONE, Appellant, v. STATE OF FLORIDA, Appellee.

Court:FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA

Date published: Feb 22, 2021

Citations

No. 1D20-3064 (Fla. Dist. Ct. App. Feb. 22, 2021)