FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
Case No. 5D22-1279
LT Case No. 05-1998-CF-029288
STATE OF FLORIDA
Appellant,
v.
JASON SCOTT DOWNS
Appellee.
On appeal from the Circuit Court for Brevard County.
Charles G. Crawford, Judge.
Ashley Moody, Attorney General, Tallahassee, and Kaylee D.
Tatman, Assistant Attorney General, Daytona Beach, for
Appellant.
Jason Scott Downs, Melbourne, pro se.
September 15, 2023
ATKINSON, J. ANDREW, Associate Judge.
The State appeals from the postconviction court's order
granting the second motion filed by Jason Scott Downs under
Florida Rule of Criminal Procedure 3.850. Downs bore the
burden of establishing that there was newly discovered
evidence that his counsel failed to convey a plea offer. Because
he failed to carry that burden, we reverse.
In 2001, a jury convicted Downs of forcing or enticing a
child to commit a lewd, lascivious, or indecent act and of
committing a lewd or lascivious act in the presence of a child,
see § 800.04(2), (4), Fla. Stat. (1998). His judgment and
sentences were affirmed per curiam. See Downs v. State, 823
So. 2d 789 (Fla. 5th DCA 2002). In 2013, Downs filed a petition
for writ of habeas corpus seeking to file a belated motion for
postconviction relief pursuant to rule 3.850(b)(3). The denial
of the petition was reversed and remanded for further
proceedings. See Downs v. State, 135 So. 3d 521, 522 (Fla. 5th
DCA 2014).
On June 13, 2014, Downs filed his first postconviction
motion; among the claims he asserted was that his trial
counsel misadvised him to reject a plea offer made by the State,
Downs v. State, 227 So. 3d 694, 695 (Fla. 5th DCA 2017),
which was communicated to him "in the hallway, outside the
courtroom" just before trial. In the motion, Downs described
the plea offer as "a year probation for battery," which "mean[t]
no sex offender registration." He testified that his counsel did
not discuss "whether or not there would be a withhold or an
adjudication of guilt." In the order denying Downs relief, the
postconviction court recounted that Downs "testified at the
evidentiary hearing that on the day of trial, . . . trial counsel[]
conveyed a plea offer for one year of probation on a battery
charge with no sex offender registration requirements" and that
trial counsel argued at the sentencing hearing "that the State
'had offered probation withhold, which he [Downs] turned
down.' " The postconviction court explained that "it appears
that some sort of plea offer involving one year of probation with
a withhold of adjudication was most likely made to the
Defendant and the Defendant rejected that offer" but did "not
find the Defendant's testimony credible concerning [trial
counsel] telling the Defendant he would not receive a sentence
greater than the plea offer if he lost at trial." This court
affirmed the denial of that claim without discussion. See id.
Downs filed a second postconviction motion on February
28, 2020, in which he alleged, among other things, there was
newly discovered evidence that his trial counsel was ineffective.
State v. Downs, 333 So. 3d 245, 246 (Fla. 5th DCA 2021). The
claim was based upon an affidavit of Judge Bruce Jacobus,
who presided over Downs' original 2001 trial. Id. In his
2
affidavit, Judge Jacobus represented that he had heard a plea
offer in open court on the day of trial which Downs' trial
counsel failed to convey to Downs. The postconviction court
summarily granted Downs' motion without holding an
evidentiary hearing, concluding merely that Downs "did not
receive a fair trial and is entitled to relief." Id.
On appeal, this court noted that "the postconviction court
did not make any factual findings in the written order, and
there are no oral findings to turn to because the court did not
conduct an evidentiary hearing. The court did not even
explicitly conclude that it found that there was ineffective
assistance of counsel." Id. at 248.
The record demonstrates that the issue of trial
counsel's failure to relay the plea offer was
specifically addressed at the evidentiary hearing for
Downs' first postconviction motion and that Downs
testified he was aware of the plea offer and
discussed it with trial counsel. It is unclear
whether Judge Jacobus' affidavit refers to the same
offer or another offer because the postconviction
court failed to make any factual findings.
Id. at 246 n.1. This court reversed and remanded for an
evidentiary hearing so that the postconviction court could
make the requisite factual findings. Id. at 248.
On remand, the postconviction court held an evidentiary
hearing during which Judge Jacobus testified that on the day
of the 2001 trial the assistant state attorney disclosed in open
court that there was a plea offer for "[a] nonsexual
misdemeanor with one year probation, and a withhold" but did
not state the exact crime. Judge Jacobus testified that Downs'
counsel, without consulting with his client, responded, "that's
totally ridiculous, he's innocent, we're going to trial." When
asked about whether he was privy to the plea-offer discussion
that occurred between Downs and his trial counsel in the
hallway, Judge Jacobus admitted that he was not present for
that discussion, and he had "no idea" whether that involved
3
the same plea offer as the one announced by the State in open
court.1
1 Judge Jacobus' hearing testimony made it apparent
that, at the time he executed his affidavit and later testified for
the most recent postconviction proceeding, he was also
unaware that a plea offer had been the subject of Downs' prior
2016 postconviction proceeding and did not recall that a
rejected plea offer had been discussed during Downs' 2001
sentencing hearing:
Q. Okay. And I would point to [the 2016
transcript of the hearing on Downs' first
postconviction motion]. [Postconviction counsel]
says, okay, on the day of trial, prior to trial, was
there a plea offer conveyed. And Mr. Downs says,
yes. So you did know that?
A. Yeah, I knew there was a plea offer conveyed.
It was in the courtroom. I was sitting there.
Q. Okay. Then [postconviction counsel] follows
up and says[,] . . . "Did he talk to you at the time?
Where were you when [trial counsel] conveyed this
plea offer?" And . . . Downs says, "right out, right
out in the hallway outside the courtroom." Were
you aware of that?
A. No.
Q. So when you signed your affidavit you were not
aware that Mr. Downs had that plea offer
conveyed to him outside in the hallway?
A. Correct.
Q. And so when he wrote the affidavit, or he typed
up the affidavit did he take the time to correct you
and say, wait a second, I already testified in 2016
that I was out in the hallway when that offer was
made to me?
A. He didn't say that.
Q. He didn't tell you that, did he?
A. No.
Q. So is that maybe another part of your affidavit
that could stand to be corrected?
A. No.
4
Q. Well, maybe Mr. Downs should have told you
that there was contrary evidence to what you were
writing in your affidavit?
A. Yeah, probably.
Q. Okay. So now you were . . . obviously the
sentencing judge in this case too; correct?
A. Correct.
Q. And are you aware that, or in your review
[before signing the affidavit and testifying during
the postconviction proceeding] did you review the
sentencing transcript . . . of the sentencing you
conducted?
A. No.
Q. Okay. Okay. Now I’m referring to . . . the
sentencing transcript from . . . 2001 . . . . Judge
Jacobus, were you aware that [trial counsel]
stated to you, and the State had offered probation,
withhold, which he turned down?
A. Which, what now?
Q. He turned down.
A. I didn't read the transcript. I knew, yeah, I
knew, I read – I mean, I guess what I'm saying is I
knew that [there was] a plea and it had been
turned down.
Q. You're saying you knew there had [been] a
plea, [and] it had been turned down?
A. Well, it was turned down in the courtroom, by .
. . – but it was [trial counsel that] did it, as far as I
remember.
Q. As far as you remember?
A. Correct. . . . I know that part that I personally
saw was [trial counsel] turned it down without
communicating with Mr. Downs or his parent in
my courtroom.
Q. Okay. And so you're also, so you're saying Mr.
Downs was in the courtroom?
A. When it happened?
Q. Yes.
A. Yes, . . . but he was sitting at the table. His
parents were back there. . . .
5
Q. Okay. But you weren't aware of the
communication that took place outside the
courtroom?
A. That part I did not know.
Q. Okay. And so [trial counsel] is mentioning it at
the sentencing to you?
A. Well, he said, I mean, that's what he said, he
turned it down, but, I must of heard it.
Q. You what?
A. I – it was said in my courtroom, I'm sure I
must of heard that.
Q. Okay. And then . . . [in] that same
[sentencing] transcript, . . . [trial counsel] says to
you: "But as the [c]ourt recalls there was an offer
for probation." Okay. So do you recall that or –
do you recall that?
A. Do I recall him saying that, or do I recall that
there was an offer for probation?
Q. Do you recall that from the sentencing
transcript?
A. No.
Q. So, again, the sentencing transcript is not
something you reviewed?
A. Correct. . . .
Q. Okay. So . . . the uncle of Mr. Downs[] testified
at the sentencing hearing before you. . . . The
uncle is telling you, and he's saying, was saying
you, being Jason Downs, you need to make sure
you believe – to make sure what you believe in is
right and stick to your guns. He did that and
avoid[ed] several plea offers, as his lawyer said
down to the misdemeanor, no jail time. And
because of my guidance, he goes on to say, part of
my misdirection, he didn't, he didn't plea. So
again there's another reference to a plea that Mr.
Downs was turning down, and this is brought up
in the sentencing transcript to you, and you don't
recall that?
A. I don't remember – here's what I knew, . . . and
I've said it many times, the only thing I knew is
what was said in the courtroom, and that was that
there was a plea to a misdemeanor of a nonsexual
6
We apply a two-prong standard of review to an order
granting a motion for postconviction relief, deferring to the
postconviction court's findings on factual issues where there is
competent, substantial evidence to support them, and
reviewing de novo its conclusions regarding the deficiency and
prejudice prongs of Strickland v. Washington, 466 U.S. 668
(1984). See Downs, 333 So. 3d at 247 (quoting Everett v. State,
54 So. 3d 464, 472 (Fla. 2010)).
To prevail on a postconviction claim based on newly
discovered evidence, a defendant must prove two
things: (1) that the evidence was not known to the
trial court, the defendant, or counsel at the time of
trial, and it could not have been known through
diligence, and (2) that the evidence is of such a
nature that it would probably produce an acquittal
on retrial.
Schofield v. State, 311 So. 3d 918, 921 (Fla. 2d DCA 2020).
Downs raised an ineffective assistance of counsel claim as to
the hallway plea offer in an earlier postconviction motion.
"[R]ule 3.850 permits a court to dismiss a second or successive
postconviction motion if the motion raises claims that have
already been decided on the merits in a prior proceeding."
DeCola v. State, 344 So. 3d 598, 600 (Fla. 2d DCA 2022) (citing
Fla. R. Crim. P. 3.850(h)(2)).
So, Downs' claim that his counsel was ineffective for
failing to discuss the plea offer conveyed in open court cannot
succeed unless he proved that it was a different offer than the
one communicated to him in the hallway. This is for two
nature, one year probation, and [trial counsel]
turned it down with no communication. So I was
aware that there was a plea offer, kind of what it
was, not totally, because I never knew what they –
they never said, [the prosecutor] never said what
the crime was, just a misdemeanor of a nonsexual
nature.
Q. Okay.
A. So, I knew that. I mean, I knew there was a
plea that had been turned down. Now the other
part I didn't know, obviously.
7
reasons: (1) because if it was not a different plea, then it cannot
constitute newly discovered evidence, and (2) if it was the same
plea conveyed to Downs and rejected by him in the hallway,
then counsel cannot have been ineffective for failing to convey
it to him again when it was allegedly discussed in Judge
Jacobus' presence in the courtroom. And it is not enough that
Downs merely raise a doubt as to whether the plea agreements
were the same because he bears the burden of proof at the
evidentiary hearing. See, e.g., Fla. R. Crim. P. 3.850(f)(8)(B)
("At an evidentiary hearing, the defendant shall have the
burden of presenting evidence and the burden of proof in
support of his or her motion, unless otherwise provided by
law."); Tribbitt v. State, 339 So. 3d 1029, 1033 (Fla. 2d DCA
2022) ("Mr. Tribbitt would be required to prove at an
evidentiary hearing that the twenty-year plea offer existed.");
Green v. State, 857 So. 2d 304, 305 (Fla. 2d DCA 2003) ("Green
had the burden of proving his claim of ineffective assistance of
counsel."); Morgan v. State, 912 So. 2d 642, 643 (Fla. 5th DCA
2005) ("Morgan offers no allegation about how he obtained the
information about a plea offer, why he could not have obtained
it earlier, nor why his counsel-trial or appellate-could not have
done so, by the use of due diligence within the two year time
period for filing a rule 3.850 motion.").
At the evidentiary hearing, all Downs proved was that the
plea that Judge Jacobus recounts being discussed in open
court but purportedly not conveyed to Downs might have been
different than the plea admittedly conveyed to Downs in the
hallway.2 However, the record indicates that the open-court
2 Judge Jacobus's testimony was far from definitive on
the matter, as the following excerpt exemplifies:
Q. So, just to clarify, we mentioned the plea that was
offered in your presence that wasn't conveyed to me
[Downs], they were not specific as to what the charge
was.
A. No.
Q. Other than it was a misdemeanor nonsex offense; is
that correct?
A. That's correct.
Q. Thank you. And you've heard discussion about a
plea that happened in the hallway. You weren't in the
8
plea offer is at least as likely to have been the same one that
Downs admitted to rejecting in the hallway. In other words,
Downs established only the possibility that what Judge
Jacobus testified to was newly discovered evidence of a plea
offer different than the offer that was already the subject of his
previous postconviction motion. That alone compels the
conclusion that Downs failed to meet his burden. See Maharaj
v. State, 778 So. 2d 944, 951 (Fla. 2000) ("Postconviction relief
cannot be based on speculation or possibility."); Johnson v.
State, 452 So. 2d 1035, 1035–36 (Fla. 4th DCA 1984)
("[A]ppellant's testimony reflects a complete lack of familiarity
with the plea negotiations, so that the trial court would have
had to speculate as to what appellant would have done had he
been properly advised.").
However, what the record actually shows is that it is more
likely that the plea offer recounted by Judge Jacobus was the
same plea offer rejected in the hallway. The only evidence
adduced at the hearing on Downs' previous postconviction
motion suggests that the hallway plea offer is no different than
the plea offer Judge Jacobus described taking place in the
courtroom. The open court plea described by Judge Jacobus
was for an unspecified misdemeanor, not requiring sex
offender registration, a withhold of adjudication, and a year of
probation. The hallway plea involved battery—although it is
unresolved whether it was a felony or a misdemeanor—no sex
offender registration, and a year of probation.
Undeniably, both the hallway plea and the open court
plea involved a sentence of one year of probation without sex
offender registration. Downs argues that the plea offers differ
with respect to the withhold of adjudication—Judge Jacobus
testified that the open court plea involved a withhold of
adjudication, but Downs testified at the earlier evidentiary
hearing regarding the hallway plea that his counsel did not
hallway, you don't know what happened in the hallway;
is that correct?
A. I did not.
Q. So, to the best of your knowledge it could have been
a separate, different plea offer that was made in the
hallway?
A. I have no idea what it could have been.
9
mention whether or not adjudication would be withheld.
However, there is nothing to indicate that the hallway offer did
not involve a withhold of adjudication. To the contrary, the
record suggests that the hallway offer did involve a withhold of
adjudication. In Downs' rebuttal to the State's written closing
argument in the first postconviction evidentiary hearing,
Downs himself described the plea offer as one with a "withhold
of adjudication." He explicitly indicated that "there was a
withhold of adjudication with the offer." He asserted, "It has
been established that the plea offer was for battery, a year of
probation, a withhold of adjudication and no sex offender
registration." And he also referred to the sentencing hearing
after the 2001 trial at which trial counsel had advised the trial
court that there had been "a plea offer for probation and a
withhold." And in the order on the previous motion for
postconviction relief, the court suggested a finding that there
was "some sort of plea offer involving one year of probation with
a withhold of adjudication" that "was most likely made to the
Defendant and the Defendant rejected that offer." As such,
Downs' argument that the pleas can be differentiated based on
whether each did or did not include a withhold of adjudication
is meritless.
Downs also contends that the plea offers are different
because the hallway plea offer was for battery without
mentioning the severity of the offense, whereas the open-court
plea involved an unspecified misdemeanor. There is nothing to
indicate it is more likely that the plea conveyed in the hallway
was to a felony rather than a misdemeanor battery. However,
there is support indicating that the hallway plea was a
misdemeanor battery. Downs' uncle testified at sentencing
that Downs rejected several plea offers "down to the
misdemeanor, no jail time." Notably, in his written rebuttal to
the State's written closing argument after the first
postconviction evidentiary hearing, Downs is agnostic
regarding whether the charge was a felony or misdemeanor,
but he was sure that it was a battery that included a withhold
of adjudication, opining that it "matters not whether the offer
was felony battery or misdemeanor battery, especially
considering there was a withhold of adjudication with the
offer."
10
In support of his argument that the plea offer Judge
Jacobus overheard in open court was different than the
hallway plea offer, Downs emphasizes that in the order on
appeal, the postconviction court made a finding that the
hallway plea offer was for "18 months['] probation for an
aggravated assault." Yet, this reliance disserves his argument
by highlighting the postconviction court's mistaken
interpretation of the record evidence. The postconviction court
relied on a misreading of hearsay in an affidavit submitted by
Downs with his petition for writ of habeas corpus seeking to
file a belated postconviction motion; in that affidavit, the
affiant—the assistant public defender assigned to represent
Downs in the appeal from his judgment and sentence—
recounts having been "informed" by Downs "that his trial
attorney . . . advised him against a plea offer of 18 months[']
probation to the lesser offense of assault, which would preclude
any sex offender registration." The postconviction court's
reliance on this affidavit is problematic for several reasons,
including that, unlike the postconviction court's finding, the
affidavit does not describe the "hallway plea" offer as having
been to an aggravated assault. Thus, the contention that the
hallway plea offer and the open court plea offer must be
different because the former was a felony and the latter was a
misdemeanor cannot be supported by the affidavit; the affidavit
merely recounted that the plea offer was "to the lesser offense
of assault," giving no indication whatsoever that charge was for
aggravated assault or any other felony.
Even more damning is the irreconcilability of the
appellate counsel's affidavit with the evidence and argument
Downs would later present during his first postconviction
proceedings, which ubiquitously describe the "hallway plea"
offer as having been to a battery for twelve months' probation—
not to the assault for eighteen months' probation described in
the affidavit. Downs' first postconviction motion describes the
hallway plea offer as "a year probation for 'battery' . . .
mean[ing] no sex offender registration" permitting him to "get
[his] record cleared." Downs himself would later testify at the
hearing on the first postconviction motion that the plea offer
that was conveyed to him in the hallway was to battery for
twelve months of probation. In Downs' written closing
argument and rebuttal to the State's closing argument in the
first postconviction proceeding, Downs refers to the plea offer
11
as "battery, a year of probation, a withhold of adjudication and
no sex offender registration." Yet, in reaching its finding
regarding the nature of the hallway plea offer, the
postconviction court's order seemingly ignores all of the
evidence and argument at Downs' first postconviction
proceedings and cherry-picks one incompatible assertion in a
previously filed affidavit which the court misread to indicate a
felony when it only indicated a simple assault. Compare §
784.021(2), Fla. Stat. (1998) ("Whoever commits an aggravated
assault shall be guilty of a felony of the third degree,
punishable as provided in s. 775.082, s. 775.083, or s.
775.084."), with § 784.011(2) ("Whoever commits an assault
shall be guilty of a misdemeanor of the second degree,
punishable as provided in s. 775.082 or s. 775.083.").
Downs also argues that a statement made by his counsel
at the 2001 sentencing hearing supports the conclusion that
there were two separate plea agreements, the one in the
hallway and the one in open court. At the 2001 sentencing
hearing, Downs' trial counsel explained to the court that he
knew Downs would not "take a misdemeanor [plea offer]
because he wasn't guilty of anything." Trial counsel's basis for
this assertion was that "[t]he State had offered probation
withhold, which he turned down." This suggests that counsel
was arguing to the court that Downs had rejected a
misdemeanor plea offer of probation with a withhold of
adjudication. Yet, Downs counterintuitively argues on appeal
that this statement indicates that the hallway offer was for a
felony and the open-court plea offer was for a misdemeanor.
However, this is a non-sequitur: Because my client turned
down an offer to plead to a felony, "[t]hat told me he wouldn't
take a misdemeanor." The intuitive inference is that counsel
was saying he understood—i.e., "[t]hat told me"—that Downs
would not take a misdemeanor because he had already turned
down a misdemeanor with a probation sentence and a withhold
of adjudication. The antecedent to the relative pronoun "That"
is the statement, "the State had offered probation withhold,
which he turned down." If the "probation withhold" plea offer
was to a felony, how could Downs' rejection of such an offer tell
his attorney—i.e., cause his attorney to understand—that
Downs would also reject an offer of a misdemeanor—i.e., a
lesser offense? To interpret trial counsel's statement as such
would defy common sense. This argument, like the
12
postconviction court's misreading of the hearsay in the
appellate counsel's affidavit, fails to support a conclusion that
the plea offer Judge Jacobus recalls being discussed in open
court prior to the 2001 trial was a different plea than the one
conveyed to and rejected by Downs in the hallway before the
trial began.
There is no evidence that the plea offer conveyed and
rejected in the hallway was different than the open-court plea
offer. All the evidence supports the State's theory that what
Judge Jacobus recalls being discussed in open court in 2001
was the same plea offer that Downs admits to having himself
rejected in the hallway before trial—the same plea offer that
was already the subject of extensive litigation during Downs'
previous postconviction proceedings. Against that likelihood,
Downs has done nothing more than to surmise a speculative
possibility that the plea offers could have been different. And
the postconviction court concluded that they were different
based on the mention in an affidavit of a plea offer to assault
for eighteen months' probation that the court misread to
indicate an aggravated assault—and which was later
contradicted time and again by contrary evidence and
argument presented by Downs himself that the plea offer was
to a battery for twelve months' probation (which, importantly,
is compatible with Judge Jacobus's description of the
purportedly newly discovered plea offer). The trial court's
finding is not supported by competent, substantial evidence; it
is based on a misreading of evidence and contradicted by
competent, substantial evidence.
Downs has already asserted a postconviction claim of
ineffective assistance of counsel based on a plea offer he admits
to receiving and rejecting but about which he argued he was
misadvised by counsel. In order to avoid having this successive
postconviction claim barred, he had the burden to establish
that it involved newly discovered evidence. He tried to establish
that the plea offer about which Judge Jacobus testified was
newly discovered because it was not the same plea that was
the subject of his last postconviction claim. He failed to do so.
What he contends is competent substantial, evidence of a
newly discovered, different, unconveyed plea offer is merely
speculation based on misconstrued hearsay allegations in an
affidavit contradicted by fragmental recitations of the previous
13
plea offer which are in no way irreconcilable with the plea offer
discussed by Judge Jacobus. In other words, not only is the
postconviction court's factual finding and legal conclusion
based on a misreading of an affidavit filed before the prior
postconviction proceedings even began, but the finding and
conclusion are also in derogation of the evidence subsequently
admitted and the arguments later presented during those prior
postconviction proceedings. The order on appeal was not
based on competent, substantial evidence, and its conclusion
that newly discovered evidence of an unconveyed plea offer
justified a successive claim of ineffective assistance of counsel
was erroneous.
Because Downs failed to establish that the plea
discussed in Judge Jacobus's testimony constituted newly
discovered evidence of a plea offer his trial counsel failed to
convey to him, Downs failed to prove ineffective assistance
counsel and failed to establish that his claim was not
successive. We, therefore, reverse the order granting his
postconviction motion and direct the postconviction court to
dismiss his claim.
REVERSED AND REMANDED.
NORTHCUTT, STEVAN T., and LAROSE, EDWARD C., Associate
Judges, Concur.
Not final until disposition of any timely and authorized
motion under Fla. R. App. P. 9.330 or 9.331.
14