NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT



RENNY ARMSTRONG,                    )
                                    )
           Appellant,               )
                                    )
v.                                  )                  Case No. 2D14-133
                                    )
STATE OF FLORIDA,                   )
                                    )
           Appellee.                )
___________________________________ )

Opinion filed September 24, 2014.

Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Collier County; Ramiro Manalich, Judge.

Renny Armstrong, pro se.


SILBERMAN, Judge.

             Renny Armstrong appeals the summary denial of his postconviction

motion filed under Florida Rule of Criminal Procedure 3.850. We affirm the denial of

grounds two, three, and four without comment, but we reverse the denial of ground one

and remand for further proceedings.

             In 2010, Armstrong entered an open plea to burglary (count one), grand

theft (count two), fleeing to elude law enforcement (count three), and driving while
license suspended or revoked (count four). He was sentenced to fifteen years in prison

as a prison releasee reoffender (PRR) with a fifteen-year mandatory minimum on count

one, to five years in prison on count two, to fifteen years in prison on count three, and to

time served on count four. He did not appeal his judgment and sentence but instead

filed this timely postconviction motion.

              In ground one of his motion, Armstrong claimed that his former counsel

was ineffective for failing to inform him of the maximum sentence and of the possibility

of a fifteen-year mandatory minimum sentence as a PRR during plea negotiations,

resulting in the rejection of a favorable plea offer of forty-eight months in prison. He

maintained that had he been properly advised, he would have accepted the offer of

forty-eight months. He argued that although the State had not filed a notice of intent to

seek PRR designation, counsel had an obligation to advise him of the possibility of such

a designation to allow him to make an informed decision about the State's offer. He

asserted that after he rejected the offer, the State filed a PRR notice.

              In a response that was adopted and incorporated by the postconviction

court, the State asserted that although Armstrong's claim is facially insufficient, it should

be denied without leave to amend because he would be unable to amend it in good faith

to establish prejudice. Citing Scheele v. State, 

, 785 (Fla. 4th DCA

2007), the State maintained that because the trial court advised Armstrong of the

maximum sentence and of the mandatory minimum as a PRR at the plea hearing, he

could not rely on counsel's alleged misadvice. Although we agree Armstrong's motion

is facially insufficient under Alcorn v. State, 

(Fla. 2013), we disagree

that Armstrong was not entitled to leave to amend ground one.




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               In Alcorn, the supreme court held that to establish prejudice in a claim of

ineffective assistance based on misadvice resulting in the rejection of a favorable plea

offer, the defendant must demonstrate that:

               (1) he or she would have accepted the offer had counsel
               advised the defendant correctly, (2) the prosecutor would not
               have withdrawn the offer, (3) the court would have accepted
               the offer, and (4) the conviction or sentence, or both, under
               the offer's terms would have been less severe than under
               the judgment and sentence that in fact were imposed.

(citing Missouri v. Frye, 

(2012), and Lafler v. Cooper, 132 S.

Ct. 1376 (2012)).

               Armstrong failed to allege that the prosecutor would not have withdrawn

the offer and that the court would have accepted it, prongs two and three of Alcorn. See

Ramos v. State, 39 Fla. L. Weekly D1270 (Fla. 4th DCA June 18, 2014). Because

Armstrong's motion was pending at the time Alcorn was decided, the postconviction

court was required to apply Alcorn in resolving the claim. See Odegaard v. State, 

, 513 (Fla. 2d DCA 2014) (LaRose, J., concurring) ("However, recent cases

suggest an expansion of the 'pipeline' analysis to new law that applies to postconviction

claims where the resolution of the postconviction claim was still pending when the new

case was decided."); see also Barthel v. State, 

, 1055 (Fla. 2d DCA

2004) ("Because this appeal was in the 'pipeline' at the time Nelson [v. State, 

579 (Fla. 2004),] became final, Barthel is entitled to the benefit of the controlling law

in Nelson in effect at the time of appeal.").

               Moreover, the State applied an incorrect prejudice analysis. In the context

of ineffective assistance resulting in the rejection of a plea offer, "[p]rejudice . . . is

determined based upon a consideration of the circumstances as viewed at the time of



                                                -3-
the offer and what would have been done with proper and adequate advice." 

. The State incorrectly focused on what occurred after Armstrong

rejected the plea offer; what happened after did not rectify counsel's failure to provide

Armstrong with all of the information necessary to make an informed decision on

whether to accept the offer. Also, this court has expressly refused to follow Scheele

and has held that a trial court's informing the defendant of the maximum sentence would

not necessarily have put him on notice that he could not rely on counsel's advice. See

Ely v. State, 

, 169 (Fla. 2d DCA 2009). See also Singfield v. State, 

127, 129 (Fla. 2d DCA 2011) ("However, the court's advice to Singfield was clearly

qualified: the court informed him that in all likelihood, he would be sentenced to sixty-

five months in prison, despite having previously informed him of the maximum

sentences. The trial court's statement placed Singfield on notice that he could not rely

on counsel's statements to the contrary.").

              Accordingly, we reverse and remand for the postconviction court to allow

Armstrong an opportunity to amend ground one if he can do so in good faith. See Fla.

R. Crim. P. 3.850(f)(3); Spera v. State, 

(Fla. 2007).

              Affirmed in part, reversed in part, and remanded.


KELLY and VILLANTI, JJ., Concur.




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