DAVID EARL GEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Gee appeals the summary denial of his Rule 3.850 postconviction relief motion. The court finds merit in his claim that his trial counsel was ineffective for failing to advise him of a viable defense—that his pocketknife could qualify as a common pocketknife excluded from the statutory definition of 'weapon'—which he asserts would have led him to reject his guilty plea and proceed to trial.
The court holds that Gee's claim of ineffective assistance is facially sufficient and constitutes a proper attack on his conviction. A trial attorney's failure to investigate a factual defense that results in an ill-advised guilty plea constitutes a facially sufficient basis for postconviction relief.
[1] A pocketknife with a folded four-inch blade may be determined by a jury to be a "common pocketknife" excluded from the definition of "weapon" under Florida law.
[2] Ineffective assistance of counsel may be established by a trial attorney's failure to investigate a factual defense, which results in the entry of an ill-advised plea.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A trial attorney's failure to investigate a factual defense ..., which results in the entry of an ill-advised plea of guilty, has long been held to constitute a facially sufficient attack upon the conviction.”
Establishes the legal standard that counsel's failure to investigate a viable defense leading to a guilty plea is sufficient grounds for postconviction relief.
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Join FLexlaw to unlock all legal intelligenceGee was charged with carrying a concealed weapon as a convicted felon. The weapon in question was a knife with a folded four-inch blade. Under Florida…
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David E. Gee appeals the summary denial of his motions for postconviction relief, as amended, filed pursuant to Florida Rule of Criminal Procedure 3.850, raising multiple claims for relief. We find no error in the postconviction court’s orders except for the denial of Gee’s claim that his counsel was ineffective for failing to advise him that he had a viable defense to the charge of carrying a concealed weapon by a convicted felon.
Gee claimed in his original motion that he was charged with carrying a knife with a folded four-inch blade. Such a knife may be determined by the jury to be a “common pocketknife” excluded from the definition of “weapon” in section 790.001(13), Florida Statutes (2004). See L.B. v. State, 700 So.2d 370, 373 (Fla.1997). Had his counsel informed him of this viable defense to the charge, Gee asserts that he would “certainly have insisted on going to trial” rather than entering a “best interest” plea. Gee added additional verbiage to this claim in his amended motion. However, as alleged in the original motion, Gee’s claim was facially sufficient.
The postconviction court denied this claim on the ground that the determination of whether Gee’s pocketknife constituted a weapon would be up to the jury and that Gee’s counsel could not be found deficient for failing to file a motion to dismiss the charge, citing Whitted v. State, 992 So.2d 352 (Fla. 4th DGA 2008), for this proposition. However, Gee’s claim essentially is that he would not have entered a plea had his counsel advised him of this defense, not that his attorney was ineffective for failing to file a motion to dismiss. In contrast, Whitted did not specifically assert that he would have rejected the plea and gone to trial had he been informed of the defense.
“A trial attorney’s failure to investigate a factual defense ..., which results in the entry of an ill-advised plea of guilty, has long been held to constitute a facially sufficient attack upon the conviction.” Williams v. State, 717 So.2d 1066, 1066 (Fla. 2d DCA 1998). The postconviction *1037court attached no record documents to its orders denying relief that refute Gee’s facially sufficient claim. Accordingly, we reverse the denial of this claim and remand for the postconviction court to attach portions of the record that refute this claim or to hold an evidentiary hearing.
Affirmed in part, reversed in part, and remanded.
WHATLEY and WALLACE, JJ., Concur.
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Citator
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Fernandez v. State, 135 So. 3d 446 (Fla. 2d DCA 2014)…ed her. Fernandez alleged that his counsel performed deficiently by failing to investigate this potential defense to the robbery charge in case number 09-CF-772 and by failing to advise him of the defense before he pleaded guilty. See Gee v. State, 41 So. 3d 1035, 1036 (Fla. 2d DCA 2010) (“ ‘A trial attorney’s failure to investigate a factual defense ..., which results in the entry of an ill-advised plea of guilty, has long been held to constitute a facially sufficient attack upon the conviction.’ ” (quoting…
Authorities Cited
- L.B. v. State, 700 So. 2d 370 (Fla. 1997)
- Williams v. State, 717 So. 2d 1066 (Fla. 2d DCA 1998)
- Kelly v. Whitted, 992 So. 2d 352 (Fla. 4th DCA 2008)