## F I FTH 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________
Case No. 5 D 2 3

- 2658 LT Case No s

. 2013

- 305906

- CFDB 2013

- 306530

- CFDB 2017

- 300901

- CFDB 2017

- 302243

- CFDB 2017

- 304704

- CFDB

_____________________________
M ARQUIS A. M C C ORV E Y , Appellant,

v.

S TATE OF F LORIDA , Appellee.

_____________________________

3.850 A ppeal from the Circuit Court for Volusia County

. Raul A. Zambrano , Judge

. Marquis A. McCorv e y, Raiford, pro se.

No Appearance for Appellee.

April 12, 2024

H ARRIS , J

. Marquis McCorv e y appeals the postconviction court’s summary denial of his seven

- ground Florida Rule of Criminal Procedure 3.850 motion. We find that g round five of McCorv e y’s motion was insufficiently pled, and

, because McCorvey should be2 given the opportunity to amend that ground, we reverse on that limited basis. In all other respects, the summary denial of the remaining grounds is affirmed

. The defendant in a postconviction procee ding bears the burden of establishing a prima

- facie case based upon a legally valid claim; conclusory allegations are insufficient. See Patton v. State , 784 So. 2d 380, 386 (Fla. 2000). When a defendant files a facially insufficient motion, he is entitled to one opportunity to amend the motion. See Spera v. State , 971 So. 2d 754 , 761 (Fla. 2007); Fla. R. Crim. P. 3.850(f)(2) . The defendant must have been given a meaningful opportunity to cure all the insufficiencies in his motion. See Osorio v. State , 233 So. 3d 516, 517 (Fla. 2d DCA 2017).

To make a showing of ineffective assistance of counsel following the entry of a plea, a defendant must first show that counsel’s performance was deficient. See Grosvenor v. State , 874 So. 2d 1176, 1179 (Fla. 2004) (citing Hill v. Lockhart , 474 U.S. 52

, 58

– 59 (1985)). This is determined based on the totality of the circumstances. Id

. at 118 1 (citing Strickland v. Washington , 466 U.S. 668, 690 ( 1984 )). Second, the defendant must show that there was “a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial.” Id

. (quoting Hill , 474 U.S. at 59 ).

The fifth ground of McCorvey’s motion alleged that his trial counsel was ineffective for advising him to enter a plea when he had a defense to the charge s . Specifically, he contended that he was innocent of two of the o ffenses with which he was charged and suggested the State did not have a corpus delicti for these offenses. Despite his innocence, McCorv e y claimed that his counsel advised him that it was in his best interest to accept the State’s plea offer, which he ult imately did

. The postconviction court summarily denied this claim on the basis that it was challenging the sufficiency of the evidence, which it found to be improper in a Rule 3.850 motion. We see this claim differently . McCorv e y was not challenging the sufficiency of the evidence, but rather alleging that his trial counsel was ineffective for advising him to enter the plea when he had a defense to the charge. In that sense, the claim is governed by Grosvenor

. While3 his claim may appear dubious, nothing in the attached record conclusively refutes his arguments, so they must be taken as true. If Mc Corv e y did in fact have a valid defense to these charges, his trial counsel advising him to enter no contest pleas to them may well have constituted deficient performance. Howev er, McCorv e y did not allege prejudice under Grosvenor , since he never alleged that had he been properly advised, he never would have entered the plea. Consequently, the claim was insufficiently pled, and he should be given an opportunity to amend it under Spera

. The postconviction court’s summary denial of ground five of McCorv e y’s motion is reversed and remanded with instructions to afford McCorv e y an opportunity to amend.

A FFIRMED in part ; R EVERSED in part ; R EMANDED with instructions

.

E DWARDS , C .J.
, and M AKAR , J., concur

.

_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331

.

_____________________________