GREGORY JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a claim of ineffective assistance of counsel for failure to advise a defendant of the facts of their case and the possibility of suppression motions is legally insufficient if it does not allege that the defendant would not have pleaded guilty and would have gone to trial but for the counsel's failure.
Appellant sought post-conviction relief alleging ineffective assistance of counsel in four criminal cases. The trial court denied relief, summarily de…
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Appellant Gregory Johnson appeals the trial court order denying his motion for post-conviction relief filed in four criminal cases. We affirm without discussion the trial court’s summary denial of his second ground for relief, alleging ineffective assistance of trial counsel for failure to move to suppress evidence in his cases. The transcript of his plea colloquy, attached to the trial court’s order, adequately refutes that claim. However, we reverse and remand appellant’s first ground, in which he alleged ineffective assistance of his trial counsel for failure to advise him of the facts of his four cases and that he could have moved to suppress the evidence in each of these cases. Appellant’s claim on this ground was legally insufficient under Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Grosvenor v. State, 874 So.2d 1176 (Fla.2004), because he did not allege but for counsel’s failure to advise him on this basis, he would not have pleaded nolo contendere and would have insisted on going to trial in the four cases.
Since ground one was insufficiently pleaded, the trial court should have given appellant at least one opportunity to file an amended motion to cure its defects. See Spera v. State, 971 So.2d 754 (Fla.2007); Nelson v. State, 977 So.2d 710 (Fla. 1st DCA 2008).
Therefore, we reverse the summary denial of ground one and remand for the post conviction court to deny relief with leave to amend to file a facially-sufficient motion on that ground within a reasonable time. We affirm the summary denial of ground two.
Affirmed in part, reversed in part and remanded.
WARNER, POLEN and HAZOURI, JJ., concur.
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Citator
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Terrill A. Murray v. State, 253 So. 3d 1216 (Fla. 5th DCA 2018)…ineffectiveness in failing to investigate his defense and contact his witness to testify, he would not have tendered a plea and would have insisted on going to trial. See Grosvenor v. State , 874 So. 2d 1176, 1181-82 (Fla. 2004) ; Johnson v. State , 2 So. 3d 1108, 1109 (Fla. 4th DCA 2009). Because Murray has not previously amended his motion, the postconviction court should have stricken the motion and provided Murray with an opportunity to amend to state a legally sufficient claim. [*1218] See Fla. R. Crim.…
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Terrill A. Murray v. State (Fla. 5th DCA 2018)
Authorities Cited
- Hill v. Lockhart, 474 U.S. 52 (U.S. 1985)
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Grosvenor v. State, 874 So. 2d 1176 (Fla. 2004)
- Nelson v. State, 977 So. 2d 710 (Fla. 1st DCA 2008)