JOHN YANCEY NUNEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2011-01-28
No. 2D09-5252
MORRIS and KHOUZAM, JJ., Concur.
56 So. 3d 823 Florida District Court of Appeal, Second District (2011)

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Synopsis

Nunez appeals the denial of postconviction relief for ineffective assistance of counsel based on trial counsel's failure to file a motion to suppress evidence from an allegedly illegal search of his vehicle. The court reverses because the record does not conclusively establish that the police inventory search complied with standardized procedures, which is required to validate such searches.


Holding

The court reversed because the postconviction court's conclusion that the inventory search complied with standardized procedure was not supported by the record. The State must present evidence of the standardized criteria and show that the search was conducted in accordance with those criteria before an inventory search can be declared valid.


Headnotes

[1] A postconviction court must hold an evidentiary hearing or attach portions of the record conclusively refuting a claim when remanding for further proceedings.

[2] A claim of ineffective assistance of counsel based on failure to file a motion to suppress evidence requires an evidentiary hearing if the record does not conclusively re…

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Key Quotes

“Because the portions of the record the post-conviction court attached to the order do not conclusively refute ground one, we reverse and remand for an evidentiary hearing.”

Establishes the standard for review when postconviction court attempts to deny a claim by attaching record portions rather than holding a hearing.

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Facts & Procedural History

Nunez was convicted of trafficking in amphetamine, trafficking in illegal drugs, and possession of a controlled substance. Officer Miller conducted an…

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Opinion of the Court
WHATLEY, Judge.

WHATLEY, Judge.

John Y. Nunez appeals the order summarily denying ground one of his motion for postconviction relief from his convictions of trafficking in amphetamine, trafficking in illegal drugs, and possession of a controlled substance. The order was entered after remand from this court with directions to hold an evidentiary hearing or attach portions of the record conclusively refuting the claim. See Nunez v. State, 988 So.2d 695 (Fla. 2d DCA 2008). Because the portions of the record the post-conviction court attached to the order do not conclusively refute ground one, we reverse and remand for an evidentiary hearing.

In ground one, Nunez alleged that his trial counsel was ineffective for failing to file a motion to suppress the evidence discovered during an illegal search of his car. This court reversed the postconviction court’s first order denying this claim because the record did not contain evidence that Officer Miller’s inventory search was conducted pursuant to standard criteria or routine. Id. at 697 (citing Pugh v. State, 804 So.2d 1278, 1280 (Fla. 2d DCA 2002)). Upon remand, the post-conviction court again denied ground one based on Officer Miller’s inventory search of Nunez’s vehicle. This time, it attached portions of the transcript of Officer Miller’s testimony in which he stated that he conducted the inventory search of Nunez’s vehicle after his arrest of Nunez pursuant to standard operating procedure. However, Officer Miller did not say what the standard operating procedure required of him, and the procedure was not introduced *825into evidence. Case law requires that evidence of the procedure be introduced in order for the court to determine whether the inventory search was conducted in accordance with the procedure. See Pugh, 804 So.2d at 1280 (noting in dicta that “a search of the trunk could have been legally conducted based on an impoundment of the vehicle; however, before the search could be declared valid, the State would be required to present evidence that the police conducted their inventory search according to standardized criteria”) (footnote omitted); Patty v. State, 768 So.2d 1126, 1127-28 (Fla. 2d DCA 2000) (reversing denial of motion to suppress evidence found during inventory search of car because state did not present evidence of standardized criteria, and trial court made no finding search was conducted pursuant to said criteria); Williams v. State, 903 So.2d 974 (Fla. 4th DCA 2005) (holding that state could not rely on inventory search exception to warrant requirement because record did not contain standardized policy); Leary v. State, 880 So.2d 776 (Fla. 5th DCA 2004) (holding that inventory search was unlawful because record lacked sufficient evidence of standardized procedure used by police).

Thus, the conclusion of the postconviction court that the inventory search was performed according to standardized procedure is not supported by the record. Accordingly, we reverse and remand for an evidentiary hearing on whether trial counsel was ineffective for failing to file a motion to suppress.

Reversed and remanded with directions.

MORRIS and KHOUZAM, JJ., Concur.


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