         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


JUAN GUEVARA,

              Appellant,

v.                                                        Case No. 5D16-3464

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed September 1, 2017


3.850 Appeal from the Circuit Court
for Orange County,
Robert J. Egan, Judge.

William R. Ponall of Ponall Law, Maitland,
and Matthew P. Ferry, of Lindsey & Ferry,
P.A., Winter Park, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, Bonnie Jean Parrish and
Marjorie Vincent-Tripp, Assistant Attorneys
General, Daytona Beach, for Appellee.


PER CURIAM.

       Juan Guevara ("Appellant") appeals the trial court's summary denial of his Florida

Rule of Criminal Procedure 3.850 motion, filed after Appellant pled no contest to the

offenses of cultivation of cannabis and theft of utilities. Appellant raised two claims in his

3.850 motion, contending counsel was ineffective for (1) failing to advise Appellant of a
meritorious suppression issue and (2) misadvising Appellant of the deportation

consequences of his plea.       We reverse and remand for an evidentiary hearing on

Appellant's first claim and affirm as to the second claim without discussion.

       On the day of Appellant's arrest, officers approached his home and knocked on his

door after receiving complaints of a grow operation at Appellant's home. Appellant

answered, but refused to allow the officers to search his home. Nevertheless, while

standing at the front door, the officers detected the smell of marijuana emanating from

Appellant's residence.     Thereafter, the officers placed Appellant in handcuffs and

conducted a "security sweep" of Appellant's home. Subsequently, the officers secured a

search warrant and discovered a grow operation in the residence consisting of thirty-six

cannabis plants.

       In his rule 3.850 motion, Appellant alleged that (1) his residence was not open to

the public; (2) postal workers were not free to approach his home; (3) there was a large

amount of land and a lengthy driveway between his residence and the public road; (4) the

driveway was blocked by a chain; and (5) a sign indicating "Private Property, Keep Out"

was posted at the end of the driveway. Based on these allegations, Appellant asserts

that he had a reasonable expectation of privacy in the land that stretched from the front

of his home to the public road; thus, the officers lacked the authority to enter onto his land

without having first secured a warrant. Furthermore, Appellant argues that because the

officers' entry onto Appellant's land prior to knocking on his front door was unauthorized,

any search of his residence that followed violated his Fourth Amendment right to be

secure from an unreasonable search and seizure. Accordingly, Appellant contends that




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defense counsel was ineffective for failing to advise him of a potentially meritorious motion

to suppress, and that had Appellant been so advised, he would not have entered his plea.

       To prevail on a claim of ineffective assistance of counsel, a party must demonstrate

both deficient performance by counsel and prejudice. Strickland v. Washington, 466 U.S.

668, 687 (1984). A defendant cannot establish deficient performance for failure to pursue

the suppression of evidence where the defendant fails to allege meritorious grounds for

relief. See Zakrzewski v. State, 866 So. 2d 688, 694 (Fla. 2003). Moreover, "in order to

establish the prejudice prong of Strickland the defendant 'must show that there is a

reasonable probability that, but for counsel's errors, he would not have pleaded guilty and

would have insisted on going to trial.'" Bush v. State, 964 So. 2d 181, 182 (Fla. 4th DCA

2007) (citing Zakrzewski, 866 So. 2d at 694 (quoting Hill v. Lockhart, 474 U.S. 52, 57, 59

(1985))).

       As the State concedes, the facts as alleged by Appellant, which we are required

to accept as true,1 set forth a facially sufficient claim for ineffective assistance of counsel.

Cf. Bainter v. State, 135 So. 3d 517, 520 (Fla. 5th DCA 2014) (reversing order denying

defendant's motion to suppress because "the posting of . . . signs and the fencing of the

entire property, including a push gate at the entrance to the driveway, exhibited the

defendant's actual, subjective expectation of privacy" in a manner that society is prepared

to recognize as reasonable and, thus, law enforcement was first required to obtain a

warrant before entering onto defendant's property). Moreover, the record before this court

does not conclusively refute Appellant's allegations on this claim. Therefore, we reverse




       1   Thomas v. State, 162 So. 3d 1084, 1085 (Fla. 5th DCA 2015).


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the summary denial of Appellant's motion on this ground and remand for an evidentiary

hearing. We otherwise affirm.

      AFFIRMED in Part; REVERSED in Part; and REMANDED.


PALMER, EDWARDS and EISNAUGLE, JJ., concur.




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