               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                          IN THE DISTRICT COURT OF APPEAL

                                          OF FLORIDA

                                          SECOND DISTRICT


LAPAR DONTA CONLEY,                       )
DOC #166923,                              )
                                          )
              Appellant,                  )
                                          )
v.                                        )             Case No. 2D16-5417
                                          )
STATE OF FLORIDA,                         )
                                          )
              Appellee.                   )
                                          )

Opinion filed September 15, 2017.

Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Manatee County; Hunter W. Carroll,
Judge.

Lapar Donta Conley, pro se.


WALLACE, Judge.

              Lapar Donta Conley appeals the order summarily denying his pro se

motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850, in

which he raised five grounds of ineffective assistance of trial counsel. We affirm without

comment the postconviction court's denial of grounds one, three, four, and five. Ground

two of Mr. Conley's motion was facially insufficient but could be corrected to state a

facially sufficient claim. For this reason, we reverse the postconviction court's summary
denial of ground two and remand for the postconviction court to strike Mr. Conley's

motion with regard to ground two and to grant him sixty days to file an amended motion

with regard to that ground.

              A jury convicted Mr. Conley of two first-degree felonies: count one,

trafficking in oxycodone (between 28 grams and 30 kilograms); and count two,

conspiracy to traffic in oxycodone (between 28 grams and 30 kilograms). The trial court

sentenced Mr. Conley on each count to concurrent terms of twenty-six years in prison

with a twenty-five-year mandatory minimum, followed by one year of probation.

              Mr. Conley timely filed his postconviction motion under rule 3.850. In

ground two of his motion, Mr. Conley alleged that his trial counsel provided ineffective

assistance by failing to move for a hearing in accordance with Franks v. Delaware, 438

U.S. 154 (1978), to challenge the validity of the affidavit used to obtain the arrest

warrant. Mr. Conley argued that trial counsel should have moved for a Franks hearing

because the affidavit executed by the investigating officer included: (1) the officer's

allegedly false statement that the confidential informant had no known criminal history;

and (2) the officer's allegedly false statement that there were 720 oxycodone pills, even

though—as the evidence at trial proved—there were only 360 pills.

              In summarily denying ground two of Mr. Conley's motion, the

postconviction court acknowledged that Mr. Conley's pleading was deficient for failing to

allege that the investigating officer intentionally included the allegedly false statements

in the affidavit used to obtain the arrest warrant. Nevertheless, the postconviction court

denied ground two on its merits as conclusively refuted by the record. Specifically, the

postconviction court found that a challenge to the arrest warrant would not have

changed the outcome of the trial because a forensic chemist's testimony established


                                            -2-
that 360 oxycodone pills would have been sufficient to provide probable cause for Mr.

Conley's arrest. The postconviction court attached to its order a portion of the trial

transcript where the forensic chemist testified that the weight of 360 of the oxycodone

pills was 44.952 grams. The postconviction court did not attach to its order the affidavit

for the arrest warrant that is the subject of this claim, nor did the postconviction court

address Mr. Conley's claim regarding the officer's allegedly false statements about the

confidential informant's known criminal history.

              We review the summary denial of a rule 3.850 motion by de novo review,

and we "accept the [defendant's] factual allegations as true to the extent that they are

not refuted by the record." Jennings v. State, 123 So. 3d 1101, 1121 (Fla. 2013) (citing

Occhicone v. State, 768 So. 2d 1037, 1041 (Fla. 2000)). To sufficiently plead an

ineffectiveness claim premised on counsel's failure to move for a Franks hearing, the

defendant must allege sufficient facts indicating that: (1) counsel's performance was

deficient, and (2) counsel's deficient performance prejudiced the defendant, i.e., that

there is a reasonable probability that counsel's deficient performance affected the

outcome of the proceeding or undermined the result.1 See Strickland v. Washington,

466 U.S. 668, 687 (1984).

              To establish that counsel's performance was deficient, the defendant must

sufficiently allege both prongs of the Franks test: (1) that the officer misstated the

information knowingly and intentionally, or with a reckless disregard for the truth, rather


              1
                We note that a postconviction court could find a defendant's claim of
prejudice for failing to obtain a Franks hearing meritless if there was sufficient evidence
for a conviction that was independent of the arrest. See Darby v. State, 502 So. 2d
1358, 1359 (Fla. 5th DCA 1987) ("The invalidity of a given arrest, even if establishable,
may not suffice to defeat a prosecution where there is sufficient evidence of the offense
independent of the arrest.").


                                            -3-
than through mere negligence or an innocent mistake; and (2) that "the remaining

allegations are insufficient to support a probable cause finding." State v. Petroni, 123

So. 3d 62, 64 (Fla. 1st DCA 2013) (citing Franks, 438 U.S. at 168, 171-72); see also

Marquardt v. State, 156 So. 3d 464, 480 (Fla. 2015) (citing Franks, 438 U.S. at 155-56);

Wade v. State, 156 So. 3d 1004, 1015 (Fla. 2014) ("[T]he postconviction court correctly

concluded that because trial counsel could not have successfully challenged the search

warrant, trial counsel did not perform deficiently by not filing a motion to suppress or

objecting to the admission of the evidence."). As the First District explained in Petroni,

the facts alleged to support the first prong of the Franks test must indicate that "police

conduct [rose] to the level of hoodwinking or bilking, duping the issuing judge or

magistrate into signing the warrant." Petroni, 123 So. 3d at 65. In other words, the

defendant must allege that the false information or omission "amounted to deceptive

behavior on the part of the police intended to sway the judge." Id.

              Here, Mr. Conley's claim was insufficiently pleaded. As the postconviction

court correctly observed, Mr. Conley failed to allege sufficient facts to meet the first

prong for a Franks hearing—the officer's intent. Mr. Conley was required to allege that

the officer "cherry-picked specific information, while leaving out other pertinent, material

information, all the while intending that the issuing judge would thus be duped into

signing the warrant [he or] she otherwise would not have signed." See Petroni, 123 So.

3d at 66. Instead, Mr. Conley's claim in ground two of his motion amounted to nothing

more than a conclusory allegation that the officer included false information in the

affidavit used to obtain the arrest warrant. See United States v. Rodriguez, 414 F.3d

837, 842 (8th Cir. 2005) ("Conclusory allegations of falsehood are insufficient to make a

substantial preliminary showing that a false statement was intentionally or recklessly


                                            -4-
included in the affidavit." Mr. Conley failed to allege that the officer included the false

information, intending to deceive the issuing judge to sign the warrant he or she

otherwise would not have signed.

              Accordingly, the postconviction court erred by summarily denying the

motion rather than dismissing it and granting Mr. Conley sixty days to file a facially

sufficient amended motion. See Fla. R. Crim. P. 3.850(f)(2) ("If the motion is insufficient

on its face, and the motion is timely filed under this rule, the court shall enter a nonfinal,

nonappealable order allowing the defendant 60 days to amend the motion."); Spera v.

State, 971 So. 2d 754, 755 (Fla. 2007) ("[A] court abuses its discretion in failing to allow

the defendant at least one opportunity to correct [a pleading] deficiency unless it cannot

be corrected."). Therefore, we reverse the postconviction court's order in part and

remand with directions to strike Mr. Conley's motion in part and to grant him sixty days

to file an amended motion with regard to ground two. If Mr. Conley timely files an

amended claim that is facially sufficient and the postconviction court again denies the

claim as conclusively refuted by the record, the postconviction court must address claim

two of Mr. Conley's motion and attach sufficient record excerpts to its order to refute the

claim—including the affidavit executed by the investigating officer to obtain the arrest

warrant. In all other respects, we affirm the order under review.

              Affirmed in part, reversed in part, and remanded with directions.


BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.




                                             -5-
