BOBBY LEE SAVIORY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bobby Lee Saviory appeals the denial of his postconviction relief motion alleging ineffective assistance of counsel. His lawyer allegedly gave improper advice that he could appeal a non-dispositive motion to suppress after entering a no contest plea. The appellate court reverses and remands because the record does not conclusively show the motion to suppress was non-dispositive.
The summary denial was improper. The record does not support a finding that the motion to suppress was non-dispositive, nor does it contain sufficient facts to imply such a finding. The case must be reversed and remanded for attachment of records conclusively refuting the claim or for an evidentiary hearing.
[1] A defendant is entitled to an evidentiary hearing on a postconviction relief motion unless the motion, files, and records conclusively show the prisoner is entitled to no…
[2] A trial court's failure to expressly find that a motion to suppress was dispositive does not preclude a defendant from appealing the ruling on the motion to suppress if d…
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Join FLexlaw to unlock all legal intelligence“The limited record before us does not support the conclusion that the issue raised in the motion to suppress was dispositive, nor does it contain sufficient facts for us to imply such a finding.”
Establishes that the trial court failed to make a clear finding regarding dispositiveness, requiring reversal of the summary denial.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSaviory entered a no contest plea after his motion to suppress was denied. His trial counsel advised him that he could appeal the ruling on the motion…
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Bobby Lee Saviory appeals the summary denial of his motion for postconviction relief, which alleged counsel was ineffective for improperly advising him that he could appeal a non-dispositive motion to suppress after entering a no contest plea. See Fla. R. Crim. P. 3.850. The limited record before us does not support the conclusion that the issue raised in the motion to suppress was dispositive, nor does it contain sufficient facts for us to imply such a finding. See Leisure v. State, 429 So.2d 434, 436 (Fla. 1st DCA 1983) (explaining trial court’s failure to expressly find that the issue was dispositive does not mean the defendant waived his right to appeal ruling on motion to suppress as disposi-tiveness can be implied); Lamb v. State, 55 So.3d 751, 753 (Fla. 2d DCA 2011) (concluding that “[b]ecause the trial court gave Lamb the impression that she was preserving her right to appeal the ruling on her motion to suppress, we conclude that a finding of dispositiveness can be inferred from the record”). Accordingly, we reverse the summary denial of Sa-viory’s motion and remand for the attachment of records conclusively refuting his claim or for an evidentiary hearing.1 See Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000) (“[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.” (citing Maharaj v. State, 684 So.2d 726 (Fla.1996))).
REVERSED and REMANDED.
PALMER, EVANDER, and BERGER, JJ„ concur.
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Citator
Cited By
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Cannon v. State, 253 So. 3d 1200 (Fla. 2d DCA 2018)
Authorities Cited
- Freeman v. State, 761 So. 2d 1055 (Fla. 2000)
- Krishna Maharaj v. State, 684 So. 2d 726 (Fla. 1996)
- Leisure v. State, 429 So. 2d 434 (Fla. 1st DCA 1983)
- Lamb v. State, 55 So. 3d 751 (Fla. 2d DCA 2011)