KENNETH FLOWERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the motion for post-conviction relief was not conclusively refuted by the record and therefore should not have been summarily denied.
Flowers pleaded no contest to drug trafficking after drugs were found during a car search. He alleged ineffective assistance of counsel for failing to…
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PATTERSON, Chief Judge.
Kenneth Flowers timely appeals the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the motion is not conclusively refuted by the record attachments, we reverse.
Flowers pleaded no contest to trafficking in cocaine. The drugs were discovered during an allegedly consensual search of the car. Flowers is seeking to withdraw his plea, alleging ineffective assistance of counsel because his attorney failed to file a motion to suppress the cocaine. Flowers alleged that he did not consent to the search and that he told this fact to his attorney. The trial court denied the motion because the officer’s probable cause affidavit stated that Flowers consented to the search. The trial court also held that Flowers waived this claim by entering his plea.
Flowers has stated a legally sufficient claim, which was not waived by his plea. See Williams v. State, 717 So. 2d 1066 (Fla. 2d DCA 1998) (holding that ineffective assistance of counsel claim based on failure to seek suppression of evidence was legally sufficient and not waived by guilty plea). Furthermore, this claim is not conclusively refuted by the probable cause affidavit. If Flowers’ attorney had filed a motion to suppress, the trial court would have been required to make a credibility determination on the issue of whether Flowers consented to the search. “Rule 3.850 explicitly requires that the record ‘conclusively’ rebut an otherwise cognizable claim if it is to be denied without a hearing.” State v. Leroux, 689 So. 2d 235, 237 (Fla.1996).
Accordingly, we reverse the summary denial and remand for the trial court to hold an evidentiary hearing unless the record conclusively refutes Flowers’ sworn allegations.
Reversed and remanded.
BLUE and DAVIS, JJ., concur.
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Spencer v. State, 889 So. 2d 868 (Fla. 2d DCA 2004)…o file a motion to suppress resulted in any prejudice. An allegation that trial counsel provided ineffective assistance by failing to file a motion to suppress is a legally sufficient claim, which is not waived by entry of á plea. Flowers v. State, 793 So. 2d 36 (Fla. 2d DCA 2001); Williams v. State, 717 So. 2d 1066 (Fla. 2d DCA 1998). Addi [*871] tionally, Spencer’s claim is not refuted by the record attachments. Had his counsel filed a motion to suppress, the trial court would have been required to make a…
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Kristian Blake Robinson v. State, 972 So. 2d 1115 (Fla. 5th DCA 2008)…e cause affidavit stated that Robinson consented to the search. The trial court also held that Robinson waived this claim by entering his plea. Robinson has stated a legally sufficient claim, which was not waived by his plea. See Flowers v. State, 793 So. 2d 36 (Fla. 2d DCA 2001) (holding that ineffective assistance of counsel claim based on failure to seek suppression of evidence was legally sufficient and not waived by guilty plea). Further, the probable cause affidavit does not conclusively refute the c…
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Davis v. State, 15 So. 3d 770 (Fla. 2d DCA 2009)…t allege that there is “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 v. State, 874 So. 2d 1176, 1181 (Fla.2004); see also Flowers v. State, 793 So. 2d 36, 36 (Fla. 2d DCA 2001); Robinson v. State, 972 So. 2d 1115, 1116 (Fla. 5th DCA 2008). This type of claim is not waived by the entry of a guilty plea. See Flowers, 793 So. 2d at 36; Jenrette v. State, 761 So. 2d 414, 415 (Fla. 2d DCA 2000); Williams,…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Leroux, 689 So. 2d 235 (Fla. 1996)
- Williams v. State, 717 So. 2d 1066 (Fla. 2d DCA 1998)