         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D18-3623
                 _____________________________

ANDREW BROWN,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Tatiana R. Salvador, Judge.

                          May 6, 2019


PER CURIAM.

     Appellant, Andrew Brown, appeals the summary denial of
Grounds 1 through 4 of his motion and amended motion for
postconviction relief filed pursuant to Florida Rule of Criminal
Procedure 3.850. We affirm the denial of Ground 4 without further
discussion. However, we reverse the denial of Grounds 1 through
3 because those claims are not conclusively refuted by the record.

     Appellant entered a plea of guilty to the charged offense of
trafficking in cocaine, 28 grams or more, but less than 200 grams,
and was sentenced to eight years of imprisonment.              He
subsequently filed a motion for postconviction relief, in which he
raised three grounds for relief. In Grounds 1 and 2, Appellant
alleged that defense counsel rendered ineffective assistance by
failing to move to suppress the evidence of the cocaine that was en
route to Jacksonville, Florida from Costa Rica in a sealed wooden
crate and was seized by Customs and Border Protection agents in
Tennessee in the absence of probable cause, a warrant, or a
recognized exception to the warrant requirement. In Ground 3,
Appellant alleged that defense counsel rendered ineffective
assistance by allowing him to plead guilty to trafficking in cocaine,
instead of challenging the information, because the information
alleged twenty-eight grams or more, whereas the arrest and
booking report alleged only seven grams of cocaine. Appellant filed
an amended postconviction motion, raising two additional grounds
for relief.

     The trial court summarily denied Appellant’s motions. The
court denied Grounds 1 through 3 upon finding that Appellant’s
sworn testimony during the plea colloquy refuted his allegations
and, pursuant to Stano v. State, 520 So. 2d 278 (Fla. 1988), he could
not go behind his sworn testimony at the plea hearing. The court
reasoned that in entering the guilty plea, Appellant understood
that he was giving up the right to a trial and to have the State
prove the charge, he did not advise the court that he wanted
counsel to file a motion to suppress or to test the sufficiency of the
evidence, and he stated under oath that counsel answered all his
questions to his satisfaction and he did not need additional time
and was satisfied with counsel’s services. The court further found
that the signed plea form refuted Appellant’s allegations because
by signing it, he confirmed that he read, discussed with counsel,
and understood the contents of the plea form, which contained the
following language:

    My attorney has taken all actions requested by me, or has
    explained to my satisfaction and agreement why such
    actions should not be taken, and I concur with my
    attorney’s decision in that regard. I am completely
    satisfied with the services rendered by my attorney on my
    behalf in this case.

The trial court attached to its order the plea form and the
transcript of the plea hearing. This appeal followed.

    In moving for postconviction relief, the defendant bears the
burden of proving “a prima facie case based on a legally valid
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claim” and conclusory allegations are insufficient. Valentine v.
State, 98 So. 3d 44, 54 (Fla. 2012) (quoting Franqui v. State, 59 So.
3d 82, 96 (Fla. 2011)). The defendant is entitled to an evidentiary
hearing unless the motion and record conclusively show he is not
entitled to relief or the motion or claim is legally insufficient. Id.;
see also Fla. R. Crim. P. 3.850(f)(5). An appellate court defers to a
postconviction court’s factual findings so long as they are
supported by competent, substantial evidence, but reviews legal
conclusions de novo. Victorino v. State, 127 So. 3d 478, 486 (Fla.
2013).    In reviewing a trial court’s summary denial of a
postconviction claim, the factual allegations must be accepted as
true to the extent they are not refuted by the record. Valentine, 98
So. 3d at 54.

     To prevail on an ineffective assistance of counsel claim, the
defendant must prove that (1) his or her trial counsel’s
performance was deficient and (2) the deficient performance was
prejudicial for it deprived him or her of a fair trial. Victorino, 127
So. 3d at 486 (citing Strickland v. Washington, 466 U.S. 668
(1984)). In the context of a plea agreement, to establish the
prejudice prong, the defendant must show a “reasonable
probability that, but for counsel’s errors, [he] would not have
pleaded guilty and would have insisted on going to trial.” Hurt v.
State, 82 So. 3d 1090, 1092 (Fla. 4th DCA 2012) (quoting Hill v.
Lockhart, 474 U.S. 52, 59 (1985)). The same standard applies to a
defendant who pleaded guilty and claims that defense counsel was
ineffective in failing to advise of an available defense. Grosvenor
v. State, 874 So. 2d 1176, 1181 (Fla. 2004).

     “A rule 3.850 motion cannot be used to go behind
representations the defendant made to the trial court, and the
court may summarily deny post-conviction claims that are refuted
by such representations.” Kelley v. State, 109 So. 3d 811, 812-13
(Fla. 1st DCA 2013) (citing Stano, 520 So. 2d at 279). However,
“[a] trial attorney’s failure to investigate a factual defense or a
defense relying on the suppression of evidence, which results in
the entry of an ill-advised plea of guilty, has long been held to
constitute a facially sufficient attack upon the conviction.” Fry v.
State, 217 So. 3d 1139, 1140 (Fla. 1st DCA 2017) (quoting
MacKinnon v. State, 39 So. 3d 537, 538 (Fla. 5th DCA 2010)). “A
claim of ineffective assistance of counsel for failure to advise a

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defendant of a potential defense can state a valid claim if
defendant was unaware of the defense and can establish that a
reasonable probability exists that [she] would not have entered the
plea if properly advised.” Id. at 1141 (quoting Jacobson v. State,
171 So. 3d 188, 191 (Fla. 4th DCA 2015)).

     Therefore, it is error to summarily deny a claim of ineffective
assistance of counsel based on counsel’s failure to investigate a
potential defense or file a motion to suppress evidence where the
record attachments do not conclusively show that the defendant
was made aware of the potential defense or suppression issue prior
to entering the plea. See Myers v. State, 247 So. 3d 78, 80 (Fla. 2d
DCA 2018) (reversing the summary denial of the postconviction
motion because the court “erred when it concluded that by entering
a plea, Myers had waived his claim that counsel was ineffective for
failing to challenge the information and raise Myers’ lack of a
Florida driver’s license as a defense”); Fernandez v. State, 135 So.
3d 446, 447-48 (Fla. 2d DCA 2014) (reversing the summary denial
of the appellant’s claim that defense counsel rendered ineffective
assistance by failing to investigate and advise him of a potential
afterthought defense because his statements during the plea
colloquy that he was satisfied with counsel’s services and did not
need counsel to file any motions or talk to any witnesses did not
conclusively refute his claim that he was unaware of the possibility
of asserting the afterthought defense at the time he pleaded
guilty); Zanchez v. State, 84 So. 3d 466, 468 (Fla. 2d DCA 2012)
(finding that “the prohibition against going behind the plea
announced in Stano” did not foreclose the appellant’s claim that
defense counsel rendered ineffective assistance by failing to file a
motion to suppress, and the summary denial of her claim was
erroneous, where she responded affirmatively during the plea
hearing when asked whether counsel had discussed with her all
defenses she might have, including any motions that could be filed
to challenge the evidence taken from her or her statements to
police, but the suppression issue was not specifically addressed);
Wilson v. State, 871 So. 2d 298, 299-300 (Fla. 1st DCA 2004)
(reversing the summary denial of the appellant’s claim that
defense counsel failed to investigate evidence that would have
supported a motion to suppress his statements to the police
because the record attachments did not conclusively refute the


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claim where it offered no indication that he was made aware of a
potential suppression issue prior to entering his plea).

     In this case, as the State properly conceded in its response to
our Toler * order, the record attachments to the trial court’s order
do not conclusively refute Appellant’s claims in Grounds 1, 2, and
3 because they do not reflect that the issues of the suppression of
evidence or the discrepancy in the alleged weight of the cocaine
were addressed at the plea hearing or that Appellant had
otherwise been made aware of them prior to entering his plea of
guilty. Therefore, the trial court erred by summarily denying
those claims. We note, however, that Appellant completely
omitted an allegation of prejudice as to Ground 3, rendering that
claim facially insufficient. Accordingly, we reverse the denial of
Grounds 1 and 2 and remand for the trial court to either attach
portions of the record that conclusively refute the claims or hold
an evidentiary hearing. We also reverse the denial of Ground 3
and remand for the court to strike the claim with leave for
Appellant to file a facially sufficient claim in accordance with
Spera v. State, 971 So. 2d 754 (Fla. 2007). See Zanchez, 84 So. 3d
at 467-69 (reversing the denial of the ineffective assistance of
counsel claim because the record attachments did not conclusively
refute it and remanding for the trial court to strike the claim with
leave to amend because it was facially insufficient given that it
omitted an allegation of prejudice). We affirm the denial of Ground
4.

    AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

LEWIS, ROWE, and MAKAR, JJ., concur.

                   _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________



    *Toler   v. State, 493 So. 2d 489 (Fla. 1st DCA 1986).

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Andrew Brown, pro se, Appellant.

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




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