WILLIAM LITZ
v.
STATE OF FLORIDA
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A trial court cannot summarily deny an ineffective assistance of counsel claim based on lack of standing to challenge cell phone tracking without a record that conclusively demonstrates the defendant lacked a reasonable expectation of privacy in the tracked phone.
[1] A defendant may have standing to challenge warrantless cell phone tracking based on a reasonable expectation of privacy in the tracked phone, even if the defendant does n…
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Join FLexlaw to unlock all legal intelligence“The records attached to the order denying Litz's motion do not conclusively demonstrate that Litz lacked standing to challenge the cell phone tracking because the cell phone did not belong to him.”
Court's analysis of whether summary denial was proper
William Litz appealed the summary denial of his Rule 3.850 motion for postconviction relief. He claimed his trial counsel was ineffective for failing …
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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
WILLIAM LITZ,
Appellant,
v. Case No. 5D18-2913
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed January 18, 2019
3.850 Appeal from the Circuit Court for Orange County, Alicia L. Latimore, Judge.
William Litz, Polk City, pro se.
Ashley
B.
Moody, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
William Litz appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Litz raised four grounds of ineffective assistance of trial counsel in his motion. However, he claims only ground three constitutes error in his pro se brief. Therefore, he has abandoned the other grounds alleged in his motion. See Ward v. State, 19 So. 3d 1060, 1061 (Fla. 5th DCA 2009).
2
In ground three, Litz alleged that his trial counsel was ineffective for failing to file a motion to suppress the warrantless tracking of a cell phone that was used in the crimes. The trial court denied this ground, concluding that Litz lacked standing to challenge the cell phone tracking because the cell phone did not belong to him.
The records attached to the order denying Litz’s motion do not conclusively demonstrate that Litz lacked standing. See, e.g., United States v. Stringer, 739 F. 3d 391, 396 (8th Cir. 2014) (“Stringer makes no argument that he has a reasonable expectation of privacy in the contents of G.R.’s cell phone, so he may not challenge the seizure of evidence from that device.”). It is unclear from the record attachments whether Litz had a reasonable expectation of privacy in the tracked cell phone, thereby giving him standing to seek its suppression. Hence, we reverse and remand for attachments of portions of the record that conclusively refute ground three or an evidentiary hearing.
AFFIRMED in part; REVERSED in part; and REMANDED.
ORFINGER, BERGER and EISNAUGLE, JJ., concur.