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Failure to respond right away to defendant's request for advice about plea offer does not constitute ineffective assistance of counsel.  [Added 1/28/12]

    Through criminal defense counsel, on August 7, 2008, Defendant received an 8-year plea offer from the State in connection with a violation of probation charge.  He asked counsel how much time he would have to serve in prison, but counsel was not sure because he didn't know whether the provisions of the Stop Turning Out Prisoners Act (Fla.Stat. sec. 944.275(4)(b)3) would apply.  Defendant allegedly "declined the offer based on his lack of knowledge about the amount of time he would actually have to serve in prison."  On September 4, counsel asked the State about the time served question.  The plea offer was still open, but the State was unsure about the answer.  On October 23, defense counsel "gave [Defendant] 'good news' that, because the offense was old, he would have to serve only 55 to 65% of the eight-year sentence offered in the plea deal.  [Defendant] wanted to accept the deal, but the prosecutor would not agree to it and rescinded the offer.  [Defendant] then admitted the violation."

    Defendant filed a motion for postconviction relief under Fla.R.Crim.P. 3.850 alleging that "his counsel was ineffective in failing to advise him sooner as to the amount of time he would actually serve in prison.  He alleges that he would have taken the eight-year plea offer if he had known he would have to serve only 55 to 65% of the eight-year offer."  The State contended that there was no basis for relief because there was no allegation that defense counsel gave any incorrect advice.  The trial court denied the motion, and Defendant appealed.

    The Fourth DCA affirmed.  "As this case illustrates, during negotiations, plea offers are often extended based on incomplete facts regarding the circumstances of the offense, the defendant’s prior record, the applicable laws, and other salient factors.  As a result, plea offers are subject to withdrawal at any time before formal acceptance by the court.  Counsel’s inability to immediately provide perfect advice about the wisdom of accepting a plea offer, which results in the loss of what in hindsight turns out to have been a favorable plea offer, does not result in the type of prejudice necessary to establish a violation of the Sixth Amendment right to effective counsel.  The defendant has n o constitutional right to enforcement of any plea bargain until the plea is formally accepted by the court."  Hurt v. State, __ So.3d ___ (Fla. 4th DCA, No. 4D10-4598, 1/25/2012).

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