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 affidavit, Judge Jacobus
2
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
3
"no idea" whether that involved 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 reasons: (1)
because if it was not a different plea, then it cannot constitute
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
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,
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
hallway, you don't know what happened in the hallway;
is that correct?
A. I did not.
8
the record indicates that the open-court 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 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
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
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."
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
10
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 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
11
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 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
12
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 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.
13
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