TERRILL A. MURRAY

v.

STATE

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

TERRILL A. MURRAY,

Appellant,

v. Case No. 5D18-1612

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed August 24, 2018

3.850 Appeal from the Circuit Court for Putnam County, Patti A. Christensen, Judge.

Terrill A. Murray, Defuniak Springs, pro se.

No Appearance for Appellee.

PER CURIAM.

Terrill A. Murray appeals the postconviction court’s summary denial of his timely motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the sole ground for relief asserted in Murray’s motion was insufficiently pleaded, we reverse to give him an opportunity to file a legally sufficient motion.

Murray was charged with violating his probation by leaving St. Johns County, his county of residence, without the consent of his probation officer. Murray admitted to the

In his postconviction motion, Murray acknowledged that he had left the county without permission but explained that his cousin was driving him home from work when she decided to go to Duval County to do some shopping at a mall. Murray alleged that because he was unable to exit his cousin’s vehicle or otherwise to exercise control over her driving, he ended up outside his county of residence for a little over three hours until his cousin finished her shopping trip. Murray further alleged that his counsel was ineffective because he provided counsel with the cousin’s name, she was available to testify at trial, and her testimony would have established that the time that Murray was briefly out of his county of residence was not a willful and substantial violation of his probation. See Young v. State, 566 So. 2d 69, 69–70 (Fla. 2d DCA 1990) (“A violation which triggers a revocation of probation must be willful and substantial and the willful and substantial nature of the violation must be supported by the greater weight of the evidence.” (quoting Hightower v. State, 529 So. 2d 726, 727 (Fla. 2d DCA 1988))).

A trial attorney’s failure to investigate a factual defense that results in the entry of an ill-advised plea of guilty can constitute a facially sufficient attack upon the conviction. Guzman-Aviles v. State, 226 So. 3d 339, 342 (Fla. 5th DCA 2017) (quoting MacKinnon v. State, 39 So. 3d 537, 538 (Fla. 5th DCA 2010)). Murray asserted in his motion that his case is factually similar to Zelaya v. State, 713 So. 2d 1079 (Fla. 4th DCA 1998). In that case, the defendant was placed on community control, and one of his conditions of supervision required that he be at home after work no later than 6:30 p.m. Id. at 1079. The defendant was working as a landscaper and, at approximately 6:10 p.m., was riding

In the instant case, Murray argued that, much like Mr. Zelaya, he had no control over his cousin or her actions in driving them to Duval County and his violation of probation was neither willful nor substantial. However, Murray’s motion was insufficiently pleaded as he failed to allege that but for his counsel’s 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. See Fla. R. Crim. P. 3.850(f)(2); Spera v. State, 971 So. 2d 754, 761 (Fla. 2007).

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Accordingly, we reverse the order on appeal and remand with directions that the postconviction court provide Murray with sixty days to file an amended motion to state a legally sufficient claim for relief.

REVERSED and REMANDED with directions.

EVANDER, WALLIS, and LAMBERT, JJ., concur.