          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-3441
                  _____________________________

ERIC VINCENT HILL,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Duval County.
Angela M. Cox, Judge.

                        December 10, 2018

B.L. THOMAS, C.J.

     Appellant challenges the summary denial of his
postconviction motion asserting, inter alia, that his trial counsel
provided ineffective assistance. Appellant asserts that his trial
counsel failed to inform him that the State’s evidence was legally
insufficient to support a conviction of accessory after the fact to a
homicide, a second-degree felony punishable by up to fifteen years’
imprisonment, which is the sentence the trial court imposed.
Appellant argues that he would not have pled guilty to the crime
had he been so informed. We reject all other arguments raised by
Appellant, but reverse and remand for an evidentiary hearing on
this claim.

    Appellant’s guilty plea does not foreclose his later argument
that trial counsel provided ineffective assistance under the Sixth
Amendment to the United States Constitution by allegedly failing
to inform Appellant that the State could not obtain a conviction
based on the facts and evidence.

     At his plea colloquy, Appellant withdrew his plea of not guilty
and entered a plea of guilty. Appellant informed the trial court
that he had had adequate time to speak to defense counsel about
the plea. Appellant swore that he had been “advised of all other
facts essential to a full and complete understanding of all offenses
with which [he had] been charged” and that he waived “the right
to require the State to prove its case against [him] beyond a
reasonable doubt.” Defense counsel informed the trial court that
it hoped to persuade the court to sentence Appellant as a youthful
offender, but Appellant confirmed that he understood he could be
sentenced up to fifteen years in prison and that he was waiving his
right to trial or to appeal the trial court’s decision. The
postconviction court summarily denied Appellant’s rule 3.850
motion, ruling that Appellant’s claim was a challenge to the
sufficiency of the evidence and was thus barred by Appellant’s
voluntary guilty plea.

                              Analysis

    This Court reviews a summary denial (of a claim of
    ineffective assistance of counsel under Rule 3.850)
    without an evidentiary hearing de novo and will affirm
    only where the appellant’s claims are facially invalid or
    conclusively refuted by the record. Where no evidentiary
    hearing is held below, this Court also accepts the
    defendant’s factual allegations to the extent they are not
    refuted by the record.

Flagg v. State, 179 So. 3d 394, 396 (Fla. 1st DCA 2015); see also
Wilson v. State, 871 So. 2d 298, 299 (Fla. 1st DCA 2004) (holding
that the record must “‘conclusively’ rebut an otherwise cognizable
claim if it is to be denied without a hearing”) (quoting State v.
Leroux, 689 So. 2d 235, 237 (Fla. 1996)).

     A criminal defendant states a cognizable ineffective
assistance of counsel claim by alleging that counsel failed to advise
him that the State’s evidence was insufficient to support a

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conviction, and had he been so advised, he would not have entered
into a guilty plea. Golden v. State, 509 So. 2d 1149, 1153-54 (Fla.
1st DCA 1987). Such deficient performance, if true, affects the
voluntariness of the guilty plea, thereby satisfying the prejudice
prong of Strickland v. Washington, 466 U.S. 668 (1984). Id. at
1154.

     A court is not permitted to go behind a plea, and where a
defendant freely and voluntarily enters a guilty plea, he is “barred
from attacking events before entry of the pleas.” Stano v.
Dugger, 524 So. 2d 1018, 1019 (Fla. 1988) (citing Stano v.
State, 520 So. 2d 278, 280 (Fla. 1988)). But a voluntary guilty plea
will not refute a later claim that counsel misadvised the defendant
to plead guilty, based on insufficient evidence of guilt. See Webster
v. State, 744 So. 2d 1033, 1033 (Fla. 1st DCA 1999). In Webster,
the defendant claimed his attorney failed to advise him that
alcohol consumption alone could not support a conviction for
manslaughter by culpable negligence. Id. At the plea colloquy, the
defendant stated that he was guilty, he “agreed he was entering
his plea freely and voluntarily, and he stated he was satisfied with
his attorney’s representation.” Id. at 1034. Although made
voluntarily, this court held that these statements “did not,
however, conclusively refute, or even adequately meet, the present
allegations of affirmative misadvice concerning the proof
necessary to support the elements of the crime with which
appellant was charged.” Id.

     Here, Appellant alleged that defense counsel knew that being
at the scene and not calling 911 was insufficient evidence to prove
accessory after the fact to a homicide. See Bowen v. State, 791
So. 2d 44, 52 (Fla. 2d DCA 2001) (recognizing that “[a]lthough the
common law recognized the crime of misprision of a felony for
failing to report a felony to authorities, the substantive law of
Florida does not recognize such a crime.”). The postconviction
court summarily denied Appellant’s claim, concluding that the
“allegations are based on sufficiency of the evidence” and that the
claim “is not cognizable under rule 3.850, and is, therefore,
procedurally barred.”

    We must accept Appellant’s factual allegations as true, as
they are not conclusively refuted by the record. See Flagg, 179

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So. 3d at 396. Although Appellant’s voluntary guilty plea is
conclusive as to his guilt, it is not conclusive as to whether his
attorney gave him improper advice in violation of the Sixth
Amendment to the United States Constitution. Golden, 509 So. 2d
at 1153-54. Such claims may be precluded, however, where a trial
court thoroughly ensures a factual predicate for the criminal
conduct is established.

     Accordingly, we reverse the postconviction court’s order
summarily denying Appellant’s claim that defense counsel
misadvised him to plead guilty. We remand for an evidentiary
hearing or record attachments conclusively refuting the
allegations.

    AFFIRMED in part, REVERSED in part, and REMANDED.

MAKAR and WINSOR, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Eric Vincent Hill, pro se, Appellant.

Pamela Jo Bondi, Attorney General, Sharon S. Traxler, Assistant
Attorney General, Tallahassee, for Appellee.




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