          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                          No. 1D17-5073
                  _____________________________

JONATHAN HARTLEY,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Duval County.
Marianne L. Aho, Judge.

                           July 10, 2019


PER CURIAM.

     Jonathan Hartley was 15 years old when he took the life of a
pizza delivery driver during a series of armed robberies. He
ultimately entered a negotiated plea to second-degree murder,
attempted armed robbery, and armed robbery. The court
sentenced him to life in prison with a minimum mandatory term
of 40 years for the second-degree murder, 15 years for the
attempted armed robbery with a 15-year minimum mandatory
term, and 20 years for the armed robbery.

      After this court affirmed his convictions and sentences on
direct appeal, Hartley filed pro se motions for postconviction relief
under Florida Rule of Criminal Procedure 3.850 challenging his
life sentence and asserting claims of ineffective assistance of trial
counsel. The court granted his motions in part—ordering
resentencing for the second-degree murder based on Miller v.
Alabama, 567 U.S. 460 (2012)—but denied his remaining claims
without a hearing. This is Hartley’s appeal from that order.

     In his initial brief filed through appointed counsel, Hartley
argues that the court erred in summarily denying his claims
regarding counsel’s failure to seek suppression of certain pretrial
statements and the alleged failure to advise him regarding
available defenses. We affirm the denial of the latter claim without
comment but reverse and remand for further proceedings on the
former. 1

     As to the suppression claim, Hartley alleged that his guilty
plea was both involuntary and entered without the assistance of
reasonably effective counsel because counsel did not challenge the
admission of statements obtained in violation of his privilege
against self-incrimination. He asserted that after he had invoked
his right to remain silent and his right to counsel, law enforcement
used his mother as their agent to interrogate and pressure him
into making admissions without counsel being present. He argued
that although counsel did file a motion to suppress his inculpatory
statements, the motion failed to allege as a basis for suppression
that he was interrogated after he had invoked his rights. The court
summarily denied the claim as refuted by the record, relying on
the motion to suppress and transcripts from the plea hearing.

     However, a review of the motion to suppress reveals that it
did not raise the legal theory advanced in Hartley’s rule 3.850
motion. Nor was there any discussion during Hartley’s plea
colloquy on the motion to suppress or any advice given to him
about the potential suppression of his statements. And the fact
that he entered into the plea agreement did not negate the

    1  Hartley has abandoned the other claims in his motion by not
raising them on appeal. See Watson v. State, 975 So. 2d 572, 573
(Fla. 1st DCA 2008) (“Traditionally, when a defendant submits a
brief in an appeal from a summary denial of a postconviction
motion, this Court may review only those arguments raised and
fully addressed in the brief.”).

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possibility of ineffective assistance of counsel. See MacKinnon v.
State, 39 So. 3d 537, 538 (Fla. 5th DCA 2010).

     As conceded by the State in response to this court’s Toler 2
order, the record on appeal does not conclusively refute Hartley’s
claim on the motion to suppress his inculpatory statements. Even
so, this claim is facially insufficient and should have been
dismissed. It is impossible to evaluate whether the claim would
have presented a viable theory to support a motion to suppress
based solely on the conclusory allegations that Hartley’s mother
acted as an agent of law enforcement at the time of the police
interview. See Floyd v. State, 257 So. 3d 1148, 1152 (Fla. 1st DCA
2018) (concluding that a claim of ineffective assistance of counsel
for failing to file a motion to suppress was facially insufficient
where the defendant failed to allege any supporting facts to show
that the evidence would have been subject to suppression). We
therefore reverse the portion of the order that denied this claim as
refuted by the record and remand for the court to provide Hartley
with an opportunity to state a facially sufficient claim. See Ferris
v. State, 996 So. 2d 228, 229 (Fla. 1st DCA 2008) (requiring an
opportunity to amend because “[t]he trial court did not deny the
claim on the basis of facial insufficiency, and, as such, the
appellant could not have been aware of the application of Spera [v.
State, 971 So. 2d 754 (Fla. 2007),] to this issue”).

     AFFIRMED in part and REVERSED and REMANDED in part for
further proceedings.

RAY, C.J., and WETHERELL and BILBREY, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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    2   Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986).

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Andy Thomas, Public Defender, and Barbara J. Busharis,
Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Jennifer J. Moore, Assistant
Attorney General, Tallahassee, for Appellee.




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