KRISTIAN BLAKE ROBINSON, 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 requires an evidentiary hearing.
[1] A motion for post-conviction relief is not conclusively refuted by the record attachments when the allegations are not definitively disproven by the provided documents.
[2] An ineffective assistance of counsel claim based on an attorney's failure to file a motion to suppress evidence is not waived by a subsequent guilty or no contest plea.
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Join FLexlaw to unlock all legal intelligenceRobinson pleaded no contest to possession of cocaine and sought to withdraw his plea, alleging ineffective assistance of counsel for failing to file a…
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PER CURIAM.
Kristian Blake Robinson timely appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the motion is not conclusively refuted by the record attachments, we reverse.
Robinson was convicted, upon a no contest plea, of possession of cocaine and ultimately sentenced to five years in prison. In his rule 3.850 motion, he seeks to withdraw his plea, alleging ineffective assistance of counsel because his attorney failed to file a motion to suppress the cocaine. The cocaine was discovered during an allegedly consensual search of the car. Robinson alleges that he did not consent to the search, and that his attorney did not discuss filing a motion to suppress with him. Robinson contends that had a suppression motion been filed, it would likely have been granted. The trial court denied the motion because the officer’s probable 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 claim. If Robinson’s attorney had filed a motion to suppress, the trial court would have been required to make a credibility determination on the issue of whether Robinson 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 Robinson’s sworn allegations.
REVERSED AND REMANDED.
SAWAYA, PLEUS and ORFINGER, JJ., concur.
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Guzman-Aviles v. State, 226 So. 3d 339 (Fla. 5th DCA 2017)…-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…
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Davis v. State, 15 So. 3d 770 (Fla. 2d DCA 2009)…t 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, 717 So. 2d at 1066. Whatley v. State, 7 So. 3d 1126 (Fla.…
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Whatley v. State, 7 So. 3d 1126 (Fla. 2d DCA 2009)…t 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, 717 So. 2d at 1066. In this case, the State does not disp…
Previewing 3 of 6 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)
- Flowers v. State, 793 So. 2d 36 (Fla. 2d DCA 2001)