         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED


MAX MAGIC GUZMAN-AVILES,

              Appellant,

 v.                                                      Case No. 5D17-250

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed August 25, 2017

3.850 Appeal from the Circuit
Court for Seminole County,
Donna L. McIntosh, Judge.

Max Magic Guzman-Aviles, Quincy, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee,   and     Rebecca Rock
McGuigan, Assistant Attorney General,
Daytona Beach, for Appellee.


LAMBERT, J.

       Max Guzman-Aviles appeals the summary denial of his Florida Rule of Criminal

Procedure 3.850 motion for postconviction relief. We affirm the denial of grounds three,

four, and six of his motion without further comment. As to the remaining grounds one,

two, and five, we also affirm, but not for the reasons provided by the postconviction court.
       Guzman-Aviles was charged with robbery with a deadly weapon by being in actual

possession of a firearm, a first-degree felony punishable by life imprisonment,1 and

fleeing or attempting to elude a police officer, a third-degree felony.2 Guzman-Aviles

entered into a negotiated plea agreement and, consistent with this agreement, was

sentenced to a ten-year mandatory minimum prison sentence for the armed robbery,

followed by five years of probation, and to a concurrent five years’ imprisonment for the

fleeing or attempting to elude a police officer.

       In his facially sufficient motion for postconviction relief, Guzman-Aviles asserted in

grounds one and five that his counsel was ineffective for failing to file a pretrial motion to

exclude or suppress the firearm from evidence because, according to Guzman-Aviles,

the gun could not be connected to him. Guzman-Aviles specifically alleged that the gun

was not found in his possession at the time of arrest, the police report does not reflect

that the officer who pursued Guzman-Aviles saw him discard the firearm during the chase

leading up to his arrest, the firearm was found in a public area two-and-one-half miles

from where the crime occurred, and the firearm was never shown to the victim to identify

it as the one used in the commission of the crime.           In ground two of his motion,

Guzman-Aviles alleged that his counsel was ineffective for failing to file a pretrial motion

to suppress the victim’s identification of Guzman-Aviles at a show-up3 done at the arrest

site because the show-up was impermissibly suggestive. Guzman-Aviles asserted that



       1   § 812.13(2)(a), Fla. Stat. (2012).

       2   § 316.1935(1), Fla. Stat. (2012).

       3The show-up identification procedure differs from a line-up because the witness
is presented with only one possible suspect for identification. See Perez v. State, 648
So. 2d 715, 719 (Fla. 1995).

                                                2
by failing to file a motion to suppress is a legally sufficient claim, which is not waived by

an entry of a plea.’” 217 So. 3d at 1097 (quoting Spencer v. State, 889 So. 2d 868, 870

(Fla. 2d DCA 2004)). Moreover, the plea agreement attached to the order on appeal does

not conclusively refute Guzman-Aviles’ claim that counsel was ineffective for failing to

move to suppress evidence, nor did the trial court’s plea colloquy with Guzman-Aviles

address any specific issues regarding the suppression of evidence. See Zanchez v.

State, 84 So. 3d 466, 468 (Fla. 2d DCA 2012) (holding that a general plea colloquy did

not refute or address the specific issue of an alleged illegal search); Jones v. State, 846

So. 2d 1224, 1226 (Fla. 2d DCA 2003) (stating that a defendant’s confirmation of

satisfaction with counsel during a generalized plea colloquy was insufficient to refute a

postconviction claim based on counsel’s failure to advise of a specific defense). Thus,

we find that Guzman-Aviles’ plea, by itself, did not preclude his ability to timely seek

postconviction relief based upon the ineffective assistance of his counsel. Nevertheless,

for the following reasons, we affirm the denial order under the “tipsy coachman” rule

because the court reached the right conclusion. See Lamb v. State, 212 So. 3d 1108,

1112 (Fla. 5th DCA 2017) (applying the “tipsy coachman” rule in a rule 3.850 summary

proceeding); Foss v. State, 24 So. 3d 1275, 1276–77 (Fla. 5th DCA 2009) (same);

Montero v. State, 996 So. 2d 888, 890 (Fla. 4th DCA 2008) (affirming a postconviction

court’s denial of a rule 3.850 motion for reasons other than those given by the court in its

order of denial).

       A defendant seeking postconviction relief based upon the alleged ineffective

assistance of counsel must plead and prove both deficient performance of counsel and

prejudice to the defendant. Grosvenor v. State, 874 So. 2d 1176, 1178 (Fla. 2004) (citing




                                             5
520 So. 2d at 280. Counsel also stated that the defendant confirmed to him that he had

voluntarily confessed to law enforcement after being advised of his rights, that the

defendant wanted to plea to avoid further delay, and that he did not want to proceed to

trial. Id. Under these circumstances, the court found Stano’s claim that counsel was

ineffective for failure to make a proper investigation to be conclusively refuted by the

record and that by insisting on pleading guilty and advising counsel that he had confessed

freely and voluntarily, the defendant rendered any further investigation pointless. Id. at

281. In Henry, the defendant made a generic allegation that “his counsel was ineffective

because he failed to further investigate the case.” 679 So. 2d at 886. However, unlike

the instant case, the defendant in Henry made no claim that his counsel was ineffective

for failing to file a motion to suppress or how the failure to do so affected the voluntariness

of his plea. In contrast, Guzman-Aviles essentially alleged that the evidence necessary

for filing a motion to suppress evidence was known to his counsel but that his counsel

mistakenly advised him that no motion to suppress could be filed, which Guzman-Aviles

claimed to prejudicially rely upon in entering his plea.

       “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.” MacKinnon

v. State, 39 So. 3d 537, 538 (Fla. 5th DCA 2010) (quoting Williams v. State, 717 So. 2d

1066 (Fla. 2d DCA 1998)). In Hampton v. State, 217 So. 3d 1096 (Fla. 5th DCA 2017),

this court recently held that a postconviction court erred in determining that a defendant’s

no-contest plea precluded a postconviction attack on the admissibility of evidence

because “a rule 3.850 motion alleging that ‘trial counsel provided ineffective assistance




                                              4
by failing to file a motion to suppress is a legally sufficient claim, which is not waived by

an entry of a plea.’” 217 So. 3d at 1097 (quoting Spencer v. State, 889 So. 2d 868, 870

(Fla. 2d DCA 2004)). Moreover, the plea agreement attached to the order on appeal does

not conclusively refute Guzman-Aviles’ claim that counsel was ineffective for failing to

move to suppress evidence, nor did the trial court’s plea colloquy with Guzman-Aviles

address any specific issues regarding the suppression of evidence. See Zanchez v.

State, 84 So. 3d 466, 468 (Fla. 2d DCA 2012) (holding that a general plea colloquy did

not refute or address the specific issue of an alleged illegal search); Jones v. State, 846

So. 2d 1224, 1226 (Fla. 2d DCA 2003) (stating that a defendant’s confirmation of

satisfaction with counsel during a generalized plea colloquy was insufficient to refute a

postconviction claim based on counsel’s failure to advise of a specific defense). Thus,

we find that Guzman-Aviles’ plea, by itself, did not preclude his ability to timely seek

postconviction relief based upon the ineffective assistance of his counsel. Nevertheless,

for the following reasons, we affirm the denial order under the “tipsy coachman” rule

because the court reached the right conclusion. See Lamb v. State, 212 So. 3d 1108,

1112 (Fla. 5th DCA 2017) (applying the “tipsy coachman” rule in a rule 3.850 summary

proceeding); Foss v. State, 24 So. 3d 1275, 1276–77 (Fla. 5th DCA 2009) (same);

Montero v. State, 996 So. 2d 888, 890 (Fla. 4th DCA 2008) (affirming a postconviction

court’s denial of a rule 3.850 motion for reasons other than those given by the court in its

order of denial).

       A defendant seeking postconviction relief based upon the alleged ineffective

assistance of counsel must plead and prove both deficient performance of counsel and

prejudice to the defendant. Grosvenor v. State, 874 So. 2d 1176, 1178 (Fla. 2004) (citing




                                             5
Strickland v. Washington, 466 U.S. 668 (1984)). There is a similar two-prong test for

ineffective assistance of counsel claims relating to cases resolved by a guilty or

no-contest plea. Hill v. Lockhart, 474 U.S. 52, 57–59 (1985). The first prong is the same

as in Strickland, while the second “prejudice” prong requires that a defendant

demonstrate “a reasonable probability that, but for counsel’s errors, the defendant would

not have pleaded guilty and would have insisted on going to trial.” Grosvenor, 874 So.

2d at 1179 (quoting Hill, 474 U.S. at 59). This second prong focuses the court’s analysis

on “whether counsel’s constitutionally ineffective performance affected the outcome of

the plea process.” Hill, 474 U.S. at 59.

       As previously discussed, Guzman-Aviles alleged that he asked his counsel to

move to suppress the firearm and the out-of-court identification but that his counsel

misadvised him that he could not file these motions and that the evidence would be

admissible at trial. Guzman-Aviles claims that, but for his counsel’s misadvice and

deficient performance in not pursuing these motions to suppress this evidence, he would

not have pleaded no contest and would have insisted on proceeding to trial.

Nevertheless, a defendant’s assertion of insisting on going to trial, standing alone, does

not entitle a defendant to postconviction relief. Miller v. Champion, 262 F.3d 1066, 1072

(10th Cir. 2001) (citing United States v. Gordon, 4 F.3d 1567, 1571 (10th Cir. 1993)).

Rather, the court evaluates such a claim from an objective standpoint, by applying the

totality of the circumstances test as explained in Grosvenor:

              [I]n determining whether a reasonable probability exists that
              the defendant would have insisted on going to trial, a court
              should consider the totality of the circumstances surrounding
              the plea, including such factors as whether a particular
              defense was likely to succeed at trial, the colloquy between
              the defendant and the trial court at the time of the plea, and



                                            6
              the difference between the sentence imposed under the plea
              and the maximum possible sentence the defendant faced at a
              trial.

874 So. 2d at 1181–82.

       Under this test, a defendant seeking postconviction relief following a plea, based

upon the ineffective assistance of counsel in not pursuing or misadvising about a defense,

is not required to allege and prove that he or she would have prevailed at trial on the

defense. Id. at 1180. However, the viability of the defense and the strength of the State’s

case are both relevant to analyzing the credibility of a defendant’s assertion in a rule 3.850

motion that the defendant would have insisted on going to trial. Id. at 1180–81. To that

end, for a successful ineffective assistance claim based on counsel’s failure to file a

motion to suppress, a movant must demonstrate that there is a reasonable probability

that the motion would have been granted. Cf. Robinson v. State, 972 So. 2d 1115, 1116

(Fla. 5th DCA 2008) (finding that a probable cause affidavit claiming that the defendant

consented to a search did not conclusively refute the defendant’s claim that a motion to

suppress would likely have been granted, had his attorney filed one, because the trial

court would have been required to make a credibility determination in deciding the

motion). Applying the totality of the circumstances test to the present record, we conclude

that there is no reasonable probability that Guzman-Aviles would have insisted on going

to trial. Stated differently, “[w]here, under the totality of the circumstances, no objectively

reasonable probability of prejudice exists, the claim may be summarily denied.” Capalbo

v. State, 73 So. 3d 838, 841 (Fla. 4th DCA 2011).

       The detailed factual basis provided by the prosecutor at the change of plea

hearing, based on the evidence that the State was prepared to present at trial, was that




                                              7
Guzman-Aviles had answered a Craigslist ad to purchase a cellular phone and thereafter

arranged to meet the seller at a local restaurant to consummate the transaction. The two

met in the parking lot, and after negotiations apparently broke down, Guzman-Aviles

pointed a .25 caliber semi-automatic handgun at the victim’s face, who then handed over

the phone. Guzman-Aviles then fled in his car. The police were immediately notified,

and within moments, they had Guzman-Aviles’ car in front of them. The police initiated

their police lights and siren, but Guzman-Aviles did not stop his vehicle. Instead, he

turned off his own headlights and led them on a high-speed chase. Then, according to

Guzman-Aviles’ own sworn motion, he stopped his car, jumped out and started running,

ignoring the officer’s loud verbal command to stop. The officer employed his taser, which

hit Guzman-Aviles and caused him to drop to the pavement, where he was arrested. A

separate officer, who was not involved in the chase, promptly brought the victim to the

arrest site, and the victim identified Guzman-Aviles as the individual who had just robbed

him at gunpoint. Two of the officers then walked back over the two-and-one-half-mile

chase route and located the .25 caliber handgun near a sewer.

      Guzman-Aviles argued below and asserts here that because he was not in

possession of the firearm when arrested and the officer who chased him did not list in his

police report that he saw Guzman-Aviles discard the gun during the chase, the gun

recovered along the chase route would have been suppressed.                Assuming the

truthfulness of Guzman-Aviles’ factual allegations, as is required when reviewing the

summary denial of a rule 3.850 motion to the extent they are not refuted by the record,

See Peede v. State, 748 So. 2d 253, 257 (Fla. 1999), and even assuming that Guzman-

Aviles’ legal conclusion that the gun would have been suppressed is correct, this does




                                            8
not preclude the state from prosecuting Guzman-Aviles as charged.                 “Eyewitness

testimony that the defendant possessed a firearm is sufficient evidence . . . that the

defendant was in possession of a firearm.” Akins v. State, 838 So. 2d 637, 639 (Fla. 5th

DCA 2003) (citing Fletcher v. State, 472 So. 2d 537 (Fla. 5th DCA 1985); Crump v. State,

629 So. 2d 231 (Fla. 5th DCA 1993)). Further, “[i]t is not fatal to the prosecution if the

state does not introduce the weapon into evidence.” Id. (citing Fletcher, 472 So. 2d at

539).

        As to the suppression of the victim’s identification of Guzman-Aviles resulting from

the show-up procedure used, the identification of a suspect through the show-up process

is not invalid unless the police aggravate the suggestiveness of the confrontation or the

procedure gives rise to a substantial likelihood of irreparable misidentification given the

totality of the circumstances. See Blanco v. State, 452 So. 2d 520, 524 (Fla. 1984),

receded from on other grounds by Puglisi v. State, 112 So. 3d 1196 (Fla. 2013); State v.

Jackson, 744 So. 2d 545, 548 (Fla. 5th DCA 1999). The factors to be considered in

evaluating the likelihood of misidentification include: (1) “the opportunity of the witness

to view the criminal at the time of the crime”; (2) “the witness’ degree of attention”; (3) “the

accuracy of the witness’ prior description of the criminal”; (4) “the level of certainty

demonstrated by the witness at confrontation”; and (5) “the length of time between the

crime and the confrontation.” Perez v. State, 648 So. 2d 715, 719 (Fla. 1995) (quoting

Neil v. Biggers, 409 U.S. 188, 199 (1972)).

        Based on the sworn allegations in Guzman-Aviles’ motion, the crime occurred at

night, with the victim standing next to the suspect’s driver-side door when the suspect

pointed the gun directly at the victim’s head, causing him to turn over the cell phone.




                                               9
Thus, the victim’s opportunity to view the criminal and his degree of attention is apparent.

See Jackson, 744 So. 2d at 548 (“[I]t is fair to say that [the victim] would have paid close

attention to the robber who had a gun to [the victim’s] head when he demanded the

wallet.”).4 Furthermore, the length of time between the robbery and the show-up was

brief. See id. (“Consideration must also be given to the fact that ‘an identification made

shortly after the crime is more reliable than a later identification in court.’” (quoting Blanco,

452 So. 2d at 524)).      Additionally, although Guzman-Aviles was in handcuffs when

identified, “keeping a suspect in handcuffs is insufficient, without more, to invalidate a

show-up.” Jenkins v. State, 96 So. 3d 1110, 1113 (Fla. 1st DCA 2012) (citing Jackson,

744 So. 2d at 548).

       Guzman-Aviles’ ten-year prison sentence is the lowest possible sentence that he

could have received if convicted as charged, and his plea avoided a potential life

sentence.    Guzman-Aviles also raised no challenge to the evidence supporting his

conviction for fleeing or attempting to elude a police officer that, by itself, exposed him to

a five-year prison sentence.        We also find sufficient the plea colloquy between

Guzman-Aviles and the trial court, in which Guzman-Aviles was specifically advised of

the maximum sentences that he faced if convicted as charged and the court scrupulously

reviewed with Guzman-Aviles the constitutional rights that he had and waived by

tendering his plea. Finally, for the reasons just outlined, the likelihood that the gun or the

victim’s out-of-court identification of Guzman-Aviles would be suppressed was, at best,

questionable. Accordingly, we conclude that Guzman-Aviles’ motion for postconviction




       4Guzman-Aviles does not suggest or assert that the suspect was wearing a mask
or was covering his face.

                                               10
relief was appropriately denied. In doing so, we are reminded of the following observation

made thirty-eight years ago by the United States Supreme Court regarding the limitation

on collateral attack with respect to convictions based on guilty pleas:

              Every inroad on the concept of finality undermines confidence
              in the integrity of our procedures; and, by increasing the
              volume of judicial work, inevitably delays and impairs the
              orderly administration of justice. The impact is greatest when
              new grounds for setting aside guilty pleas are approved
              because the vast majority of criminal convictions result from
              such pleas. Moreover, the concern that unfair procedures may
              have resulted in the conviction of an innocent defendant is
              only rarely raised by a petition to set aside a guilty plea.

United States v. Timmreck, 441 U.S. 780, 784 (1979) (quoting United States v. Smith,

440 F.2d 521, 528–29 (7th Cir. 1971) (Stevens, J., dissenting)).

       AFFIRMED.

PALMER and EVANDER, JJ., concur.




                                            11
