         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-3383
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TONY CARL MCBEE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Nassau County.
Robert M. Foster, Judge.

                         May 30, 2019


PER CURIAM.

     The Appellant, Tony Carl McBee, appeals the summary
denial of his motion for postconviction relief filed pursuant to
Florida Rule of Criminal Procedure 3.850. The denial must be
reversed as to ground two because the record attachments
provided by the trial court did not conclusively refute the sworn
allegations of appellant’s motion. The summary denial as to
grounds one, three, four, and five is affirmed.

    The Appellant pled guilty to manslaughter and battery of a
person 65 years of age or older. In the months before the
Appellant entered his plea, defense counsel hired an expert to
conduct a forensic evaluation of the victim’s death, and the
defense expert’s report concluded that the Appellant’s battery of
the victim was not the cause of death.

     In ground two of his motion, the Appellant argues that
counsel was ineffective because counsel failed to inform him of
this forensic evaluation’s conclusion, and if he had been properly
informed, he would not have entered a plea of guilty. The trial
court denied the claim on the ground that the Appellant told the
court under oath that he had discussed all possible defenses with
counsel and he was happy with counsel’s services. However,
nothing in the record showed that the Appellant was aware of a
forensic report supporting his defense. See, e.g., Richardson v.
State, 723 So. 2d 910 (Fla. 1st DCA 1999) (holding that plea
colloquy in which defendant indicated he was happy with counsel
and had been advised of all possible defenses did not refute
ineffective assistance claim based on counsel’s failure to advise
him of a possible defense); Fletcher v. State, 890 So. 2d 1167, 1169
(Fla. 5th DCA 2005) (“While the plea transcript reflects that
Fletcher stated that his defense counsel had discussed possible
defenses with him, there is nothing to show that Fletcher was
made aware of a potential suppression issue prior to entering his
plea.”); Jones v. State, 846 So. 2d 1224 (Fla. 2d DCA 2003) (noting
that a generalized plea colloquy confirming satisfaction with
counsel was insufficient to refute a claim based on counsel's
failure to advise of a specific defense). In its response to this
court’s order to show cause pursuant to Toler v. State, 493 So. 2d
489 (Fla. 1st DCA 1986), the State has conceded that the
documents attached to the order denying the motion for
postconviction relief do not conclusively refute this claim.

     Accordingly, we reverse as to ground two and remand for
further proceedings. We affirm the summary denial as to the
other grounds.

WOLF, BILBREY, and WINSOR, 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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Tony Carl McBee, pro se, Appellant.

Ashley Moody, Attorney General, and Heather Flanagan Ross,
Assistant Attorney General, Tallahassee, for Appellee.




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