Tracz, who pleaded no contest to a third DUI in Pinellas County, appealed the summary denial of her pro se motion for postconviction relief, and the Second District Court of Appeal has partly agreed with the defendant. In Tracz v. State, No. 2D2025-1443 (Fla. 2d DCA Oct. 28, 2026), the court affirmed the denial of two claims, reversed as to the rest, and remanded so she can try to amend them. Judge Labrit wrote the opinion, Judge Villanti concurred, and Judge Atkinson concurred in part and dissented in part. The opinion is subject to revision before official publication.
The facts
Ms. Tracz appeared on October 25, 2022, for what had been set as a misdemeanor DUI trial. Defense counsel told the court she had “come to a plea agreement” and that he had gone over the plea form with her “in the hallway.” The written form listed “DL REV” but did not state the length of the revocation or whether the plea was to a first, second or third DUI.
The State recited a factual basis and prior DUI history: a 2015 California DUI, a 2004 Illinois DUI, and a 2002 Illinois DUI that had been stricken. Based on the 2015 and 2004 priors, it said the case would be treated as a third DUI, and it announced a disposition that included a ten-year driver’s license revocation and thirty days in jail. Ms. Tracz told the court the consequences would stay with her “for the next [ten] years in the form of restricted driving ability.” In the colloquy she confirmed she had reviewed the form with counsel, had enough time to talk to him, and was not coerced. The court accepted the no contest plea and imposed the agreed disposition.
Her later sworn pro se rule 3.850 motion alleged, among other things, that counsel failed to communicate and explain negotiations, failed to challenge the prior convictions, failed to explain an alleged diversion offer, failed to meaningfully review the plea form with her, and failed to address video she believed showed she was not slurring or stumbling. The postconviction court reorganized the motion into three grounds (failure to communicate in person, failure to challenge prior convictions, and involuntary plea) and summarily denied all three.
The holding
The Second District affirmed in part. The plea transcript conclusively refutes the claim that Ms. Tracz did not know the disposition included a ten-year revocation or that she was pleading to a third DUI, the court held. It also affirmed the denial of a claim based solely on counsel’s failure to communicate in person.
The court reversed in all other respects. It said the postconviction court “overlooked or too narrowly construed” several distinct allegations that were recognizable but insufficiently pleaded ineffective-assistance claims, including the alleged failure to challenge the prior convictions, the alleged diversion offer, counsel’s alleged failure to meaningfully review the plea form, and the video evidence. The attached record excerpts did not conclusively refute them. For example, the transcript contained only the State’s oral recitation of the priors, not certified convictions or prior plea documents, and the postconviction court had not attached the videos, discovery or police reports. Ms. Tracz was therefore entitled to an opportunity to amend under Spera v. State, 971 So. 2d 754 (Fla. 2007), and rule 3.850(h). It relied on its recent framework in Mejia v. State, 434 So. 3d 131 (Fla. 2d DCA 2026), for when an inartfully drafted pro se motion fairly presents a claim.
What the court did not decide
The court said it was not holding that Ms. Tracz had stated a facially sufficient claim warranting an evidentiary hearing. It wrote: “We express no opinion on whether any amended claim will be facially sufficient, conclusively refuted by the record, or ultimately meritorious.” In a footnote it also declined to conclude, at this stage, that the plea form’s statement that she was satisfied with counsel’s representation forecloses the claim. The majority added that if the amended claims remain speculative or are conclusively refuted, the postconviction court may summarily deny them.
What she would have to show
The two kinds of claim carry different prejudice standards. For advice that induced the plea, she must show a reasonable probability that, without counsel’s deficient performance, she would have rejected the plea and insisted on trial (Grosvenor v. State, 874 So. 2d 1176 (Fla. 2004)). For the alleged lost diversion offer, she must show a reasonable probability that she would have accepted it, that it would have remained available and been approved, and that the result would have been more favorable (Alcorn v. State, 121 So. 3d 419 (Fla. 2013)). The court allowed amendment of curable claims. It did not order withdrawal of the plea or an automatic evidentiary hearing.
The partial dissent
Judge Atkinson agreed with the affirmances and agreed Ms. Tracz should be allowed to amend her diversion-offer claim. He would otherwise have affirmed. In his view, by entertaining the claim that counsel failed to challenge the prior convictions, the majority impermissibly goes “behind the plea.” The majority replied that it applies that rule where the plea record actually refutes her allegations.
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