FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D23-2658

LT Case Nos. 2013-305906-CFDB

 2013-306530-CFDB

 2017-300901-CFDB

 2017-302243-CFDB

 2017-304704-CFDB

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MARQUIS A. MCCORVEY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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3.850 Appeal from the Circuit Court for Volusia County.

Raul A. Zambrano, Judge.

Marquis A. McCorvey, Raiford, pro se.

No Appearance for Appellee.

April 12, 2024

HARRIS, J.

Marquis McCorvey appeals the postconviction court’s 

summary denial of his seven-ground Florida Rule of Criminal 

Procedure 3.850 motion. We find that ground five of McCorvey’s 

motion was insufficiently pled, and, because McCorvey should be 
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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 proceeding 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 1181 (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 charges. Specifically, he contended that he 

was innocent of two of the offenses with which he was charged and 

suggested the State did not have a corpus delicti for these offenses. 

Despite his innocence, McCorvey claimed that his counsel advised 

him that it was in his best interest to accept the State’s plea offer, 

which he ultimately 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. McCorvey 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. While 
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his claim may appear dubious, nothing in the attached record 

conclusively refutes his arguments, so they must be taken as true. 

If McCorvey 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. However, McCorvey 

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 

McCorvey’s motion is reversed and remanded with instructions to 

afford McCorvey an opportunity to amend. 

AFFIRMED in part; REVERSED in part; REMANDED with 

instructions.

EDWARDS, C.J., and MAKAR, J., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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