FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-3623

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ANDREW BROWN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Duval County.

Tatiana R. Salvador, Judge.

May 6, 2019

PER CURIAM.

Appellant, Andrew Brown, appeals the summary denial of 

Grounds 1 through 4 of his motion and amended motion for 

postconviction relief filed pursuant to Florida Rule of Criminal 

Procedure 3.850. We affirm the denial of Ground 4 without further 

discussion. However, we reverse the denial of Grounds 1 through 

3 because those claims are not conclusively refuted by the record.

Appellant entered a plea of guilty to the charged offense of 

trafficking in cocaine, 28 grams or more, but less than 200 grams, 

and was sentenced to eight years of imprisonment. He 

subsequently filed a motion for postconviction relief, in which he 

raised three grounds for relief. In Grounds 1 and 2, Appellant 

alleged that defense counsel rendered ineffective assistance by
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failing to move to suppress the evidence of the cocaine that was en 

route to Jacksonville, Florida from Costa Rica in a sealed wooden 

crate and was seized by Customs and Border Protection agents in 

Tennessee in the absence of probable cause, a warrant, or a 

recognized exception to the warrant requirement. In Ground 3, 

Appellant alleged that defense counsel rendered ineffective 

assistance by allowing him to plead guilty to trafficking in cocaine, 

instead of challenging the information, because the information 

alleged twenty-eight grams or more, whereas the arrest and 

booking report alleged only seven grams of cocaine. Appellant filed 

an amended postconviction motion, raising two additional grounds 

for relief.

The trial court summarily denied Appellant’s motions. The 

court denied Grounds 1 through 3 upon finding that Appellant’s 

sworn testimony during the plea colloquy refuted his allegations

and, pursuant to Stano v. State, 520 So. 2d 278 (Fla. 1988), he could

not go behind his sworn testimony at the plea hearing. The court 

reasoned that in entering the guilty plea, Appellant understood 

that he was giving up the right to a trial and to have the State 

prove the charge, he did not advise the court that he wanted 

counsel to file a motion to suppress or to test the sufficiency of the 

evidence, and he stated under oath that counsel answered all his

questions to his satisfaction and he did not need additional time 

and was satisfied with counsel’s services. The court further found 

that the signed plea form refuted Appellant’s allegations because 

by signing it, he confirmed that he read, discussed with counsel, 

and understood the contents of the plea form, which contained the 

following language:

My attorney has taken all actions requested by me, or has 

explained to my satisfaction and agreement why such 

actions should not be taken, and I concur with my

attorney’s decision in that regard. I am completely 

satisfied with the services rendered by my attorney on my 

behalf in this case.

The trial court attached to its order the plea form and the 

transcript of the plea hearing. This appeal followed.

In moving for postconviction relief, the defendant bears the 

burden of proving “a prima facie case based on a legally valid 
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claim” and conclusory allegations are insufficient. Valentine v. 

State, 98 So. 3d 44, 54 (Fla. 2012) (quoting Franqui v. State, 59 So. 

3d 82, 96 (Fla. 2011)). The defendant is entitled to an evidentiary 

hearing unless the motion and record conclusively show he is not 

entitled to relief or the motion or claim is legally insufficient. Id.; 

see also Fla. R. Crim. P. 3.850(f)(5). An appellate court defers to a 

postconviction court’s factual findings so long as they are 

supported by competent, substantial evidence, but reviews legal 

conclusions de novo. Victorino v. State, 127 So. 3d 478, 486 (Fla. 

2013). In reviewing a trial court’s summary denial of a 

postconviction claim, the factual allegations must be accepted as 

true to the extent they are not refuted by the record. Valentine, 98 

So. 3d at 54.

To prevail on an ineffective assistance of counsel claim, the 

defendant must prove that (1) his or her trial counsel’s 

performance was deficient and (2) the deficient performance was 

prejudicial for it deprived him or her of a fair trial. Victorino, 127 

So. 3d at 486 (citing Strickland v. Washington, 466 U.S. 668 

(1984)). In the context of a plea agreement, to establish the 

prejudice prong, the defendant must show a “reasonable 

probability that, but for counsel’s errors, [he] would not have 

pleaded guilty and would have insisted on going to trial.” Hurt v. 

State, 82 So. 3d 1090, 1092 (Fla. 4th DCA 2012) (quoting Hill v. 

Lockhart, 474 U.S. 52, 59 (1985)). The same standard applies to a 

defendant who pleaded guilty and claims that defense counsel was 

ineffective in failing to advise of an available defense. Grosvenor 

v. State, 874 So. 2d 1176, 1181 (Fla. 2004).

“A rule 3.850 motion cannot be used to go behind 

representations the defendant made to the trial court, and the 

court may summarily deny post-conviction claims that are refuted 

by such representations.” Kelley v. State, 109 So. 3d 811, 812-13 

(Fla. 1st DCA 2013) (citing Stano, 520 So. 2d at 279). However, 

“[a] trial attorney’s failure to investigate a factual defense or a 

defense relying on the suppression of evidence, which results in 

the entry of an ill-advised plea of guilty, has long been held to 

constitute a facially sufficient attack upon the conviction.” Fry v. 

State, 217 So. 3d 1139, 1140 (Fla. 1st DCA 2017) (quoting 

MacKinnon v. State, 39 So. 3d 537, 538 (Fla. 5th DCA 2010)). “A 

claim of ineffective assistance of counsel for failure to advise a 
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defendant of a potential defense can state a valid claim if 

defendant was unaware of the defense and can establish that a 

reasonable probability exists that [she] would not have entered the 

plea if properly advised.” Id. at 1141 (quoting Jacobson v. State, 

171 So. 3d 188, 191 (Fla. 4th DCA 2015)). 

Therefore, it is error to summarily deny a claim of ineffective 

assistance of counsel based on counsel’s failure to investigate a 

potential defense or file a motion to suppress evidence where the 

record attachments do not conclusively show that the defendant 

was made aware of the potential defense or suppression issue prior 

to entering the plea. See Myers v. State, 247 So. 3d 78, 80 (Fla. 2d 

DCA 2018) (reversing the summary denial of the postconviction 

motion because the court “erred when it concluded that by entering 

a plea, Myers had waived his claim that counsel was ineffective for 

failing to challenge the information and raise Myers’ lack of a 

Florida driver’s license as a defense”); Fernandez v. State, 135 So. 

3d 446, 447-48 (Fla. 2d DCA 2014) (reversing the summary denial 

of the appellant’s claim that defense counsel rendered ineffective 

assistance by failing to investigate and advise him of a potential 

afterthought defense because his statements during the plea 

colloquy that he was satisfied with counsel’s services and did not 

need counsel to file any motions or talk to any witnesses did not 

conclusively refute his claim that he was unaware of the possibility 

of asserting the afterthought defense at the time he pleaded 

guilty); Zanchez v. State, 84 So. 3d 466, 468 (Fla. 2d DCA 2012)

(finding that “the prohibition against going behind the plea 

announced in Stano” did not foreclose the appellant’s claim that 

defense counsel rendered ineffective assistance by failing to file a 

motion to suppress, and the summary denial of her claim was 

erroneous, where she responded affirmatively during the plea 

hearing when asked whether counsel had discussed with her all 

defenses she might have, including any motions that could be filed 

to challenge the evidence taken from her or her statements to 

police, but the suppression issue was not specifically addressed); 

Wilson v. State, 871 So. 2d 298, 299-300 (Fla. 1st DCA 2004)

(reversing the summary denial of the appellant’s claim that

defense counsel failed to investigate evidence that would have 

supported a motion to suppress his statements to the police 

because the record attachments did not conclusively refute the 
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claim where it offered no indication that he was made aware of a 

potential suppression issue prior to entering his plea). 

In this case, as the State properly conceded in its response to 

our Toler* order, the record attachments to the trial court’s order 

do not conclusively refute Appellant’s claims in Grounds 1, 2, and 

3 because they do not reflect that the issues of the suppression of 

evidence or the discrepancy in the alleged weight of the cocaine 

were addressed at the plea hearing or that Appellant had 

otherwise been made aware of them prior to entering his plea of 

guilty. Therefore, the trial court erred by summarily denying 

those claims. We note, however, that Appellant completely 

omitted an allegation of prejudice as to Ground 3, rendering that 

claim facially insufficient. Accordingly, we reverse the denial of 

Grounds 1 and 2 and remand for the trial court to either attach 

portions of the record that conclusively refute the claims or hold 

an evidentiary hearing. We also reverse the denial of Ground 3 

and remand for the court to strike the claim with leave for 

Appellant to file a facially sufficient claim in accordance with

Spera v. State, 971 So. 2d 754 (Fla. 2007). See Zanchez, 84 So. 3d 

at 467-69 (reversing the denial of the ineffective assistance of 

counsel claim because the record attachments did not conclusively 

refute it and remanding for the trial court to strike the claim with 

leave to amend because it was facially insufficient given that it 

omitted an allegation of prejudice). We affirm the denial of Ground 

4. 

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

LEWIS, ROWE, and MAKAR, JJ., 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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 *Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986).
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Andrew Brown, pro se, Appellant.

Ashley Moody, Attorney General, and Jennifer J. Moore, Assistant 

Attorney General, Tallahassee, for Appellee.