DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                   TAMARIUS MARQUE ALEXANDER,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D19-3588

                          [September 16, 2020]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Nineteenth Judicial Circuit, St. Lucie County; Gary L. Sweet, Judge;
L.T. Case No. 562010CF002254A.

  Michelle Walsh of the Law Offices of Michelle Walsh, P.A., Miami, for
appellant.

   Ashley Moody, Attorney General, Tallahassee, and Kimberly T. Acuña,
Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

    In this appeal of the denial of appellant’s motion for postconviction
relief, appellant contends that the trial court erred in determining that no
ineffective assistance of counsel occurred. While the evidence presented
at the hearing showed that appellant’s first attorney failed to inform him
of the potential for habitual offender sentencing when conveying a plea
offer, the trial court found that his second attorney did inform him of it
when conveying the identical plea offer, which had not been withdrawn by
the State. With that knowledge, appellant rejected the plea offer. Because
the ineffective assistance of the first attorney was cured by the second
attorney, we affirm.

    The State charged appellant with possession of a firearm by a convicted
felon. In addition, the State charged him with four other charges,
including armed burglary of a dwelling, grand theft, and dealing in stolen
property. Appellant was convicted of the possession of the firearm charge.
The remaining charges were dismissed just prior to trial. The State then
moved for Habitual Offender (“H.O.”) sentencing, and appellant was
sentenced to thirty years in prison. He appealed, and this court affirmed
his conviction and sentence. Alexander v. State, 

(Fla. 4th
DCA 2015).

   Appellant filed a motion for postconviction relief alleging that his two
attorneys who represented him during the proceedings were both
ineffective for failing to advise him that he was subject to H.O. sentencing
when they communicated the State’s plea offer. The State made a global
plea offer of fifteen years in prison on all charges. Appellant’s attorney at
the time conveyed the offer but failed, according to appellant, to advise
him that he could be subject to H.O. sentencing, which would increase the
potential sentence for the firearm charge to thirty years.

   His first attorney withdrew, and another attorney was appointed to
represent appellant. The State again conveyed the same offer. In his
motion, the appellant alleged that his second attorney likewise failed to
advise him of the potential of H.O. sentencing.

    The trial court held an evidentiary hearing on the claim. Appellant
testified that his first attorney failed to explain H.O. sentencing to him
when he conveyed the global plea of fifteen years as a prison releasee
reoffender, which was a mandatory term. He knew that he was facing two
life sentences on some of the charges, but he was not informed that as a
habitual offender he could receive up to thirty years for the firearm
possession charge. He rejected the plea as he was convinced of the
strength of his defense to the greater charges, although he thought he had
less of a chance at acquittal on the firearm charge. He testified that had
he known that he could face thirty years on the firearm charge he would
have accepted the plea.

    Shortly after he rejected the plea offer for a second time, he was
assigned a new attorney. His new attorney also conveyed the State’s global
offer of fifteen years mandatory on all charges. According to appellant, his
second attorney also did not advise him of H.O. sentencing and the
possibility that he could receive a sentence of thirty years. His attorney
advised him that the State would drop the more serious charges and that
the firearm charge would be the main concern. He also rejected that plea
offer.

   The second attorney testified that he did indeed discuss H.O.
sentencing with appellant when conveying the fifteen-year plea offer. He
told appellant that he could be subject to H.O. sentencing of up to thirty
years on the firearm charge. Appellant, however, was adamant about


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going to trial on the charges, including the possession charge, as he
thought he had a good case.

   Once the second attorney testified that he had advised appellant of the
H.O. sentencing, the State elected not to call the first attorney. The
prosecutor contended that, as the second attorney advised appellant of the
H.O. consequences prior to rejecting the plea for the final time, appellant
was properly advised, and no ineffective assistance occurred.

   The trial court denied the motion, accepting the second attorney’s
testimony that he had informed appellant of the H.O. sentencing
consequences.

   On appeal, appellant contends that because the first attorney did not
testify, and appellant testified that the first attorney did not inform him of
the H.O. sentencing potential, the first attorney provided ineffective
assistance of counsel. Under Strickland v. Washington, 

(1984), ineffective assistance was established, and the trial court should
have evaluated the case based upon the criteria of Alcorn v. State, 

419, 422 (Fla. 2013).

   Although appellant may not have been advised of the H.O. sentencing
when the plea was offered the first time, he was advised of the
consequences when the same plea offer was extended the second time.
Any ineffective assistance of the first attorney was cured by the effective
assistance of the second attorney.

   That the second attorney cured the mistake of the first attorney is
similar to cases in which the trial court’s plea colloquy cures the misadvice
of trial counsel. For instance, in Alfred v. State, 

(Fla.
2009), the defendant claimed misadvice of counsel as to the possible
length of his sentence when he agreed to plead guilty. The trial court
denied his motion to withdraw his plea, citing the court’s extensive plea
colloquy which clearly explained to the defendant that the court had
discretion to impose a sentence up to life in prison. On appeal the court
noted, in affirming, that the trial court’s thorough plea colloquy cured any
possible misadvice given to the defendant by his counsel. Similarly, in
Bluntson v. State, 

(Fla. 1st DCA 2012), the defendant
claimed that his attorney misadvised him as to the possible length of his
sentence should he plead guilty. However, the trial court had properly
advised him of the maximum sentence in the plea colloquy, and “[a]ny
previous error by defense counsel was cured by the trial court’s statement
at sentencing.”

    Similarly, in this case, the appellant received the correct advice
regarding the sentencing consequences prior to his final rejection of the
global plea offer: the same plea offer which was presented through his first
attorney. He cannot claim prejudice where he rejected the same offer with
full knowledge of the potential sentencing consequences.

    Appellant seizes upon part of a statement in Alcorn which emphasizes
that prejudice must be assessed based upon the facts and circumstances
“at the time of the 

. However, that is only part of
the quotation. The Alcorn court stated, “Prejudice therefore is determined
based upon a consideration of the circumstances as viewed at the time of
the offer and what would have been done with proper and adequate
advice.”

not testify at the hearing that the
circumstances were any different between the time he rejected the plea the
first time and the time he rejected it the second time. Just as in Alfred
and Bluntson, the prejudice was cured, because he was properly advised
prior to his final rejection of the plea offer.

   Because the second attorney properly advised appellant as to the H.O.
sentencing consequences that he faced upon a conviction, when
evaluating the same offer that was made to him through his prior attorney,
appellant cannot claim ineffective assistance for his prior counsel’s failure
to advise of his H.O. status. We affirm the trial court.

   Affirmed.

MAY and ARTAU, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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