Brown v. State

Citation967 So.2d 440
Decision Date07 November 2007
Docket NumberNo. 4D07-1464.,4D07-1464.
PartiesTobias BROWN, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Tobias Brown, Indiantown, pro se.

No appearance required for appellee.

POLEN, J.

Appellant Tobias Brown appeals the trial court's summary denial of his rule 3.850 motion for post-conviction relief. Brown pleaded guilty to the charges of conspiracy to commit murder and solicitation to commit murder, and was sentenced to twenty years on two counts, sentences to run concurrently. Brown raises seven claims in his appeal and we find merit in Claims Two and Seven. As to these two claims, Brown argues he received ineffective assistance of counsel due to defense counsel's failure to file a motion to suppress statements he made after receiving inadequate Miranda warnings, and because defense counsel failed to inform him of a possible defense to the charge of conspiracy to commit murder. We affirm the trial court's summary denial of all but Claims Two and Seven, reverse the trial court's summary denial of these two claims and remand for an evidentiary hearing.

To uphold a trial court's denial of a rule 3.850 motion without a hearing, the claims must be facially invalid or the record must show that the claimant is not entitled to relief. McLin v. State, 827 So.2d 948, 954 (Fla.2002). However, if the claims are facially sufficient, the trial court must attach portions of the record showing the claimant is not entitled to relief. See Fla. R.Crim. P. 3.850(d); Cooper v. State, 835 So.2d 1250 (Fla. 4th DCA 2003). Moreover, when the trial court does not hold an evidentiary hearing, a reviewing court must accept as true the factual allegations "to the extent they are not refuted by the record." McLin, 827 So.2d at 954 (citing Foster v. State, 810 So.2d 910, 914 (Fla.), cert. denied, 537 U.S. 990, 123 S.Ct. 470, 154 L.Ed.2d 359 (2002) (citations omitted)).

"[A] defendant alleging an ineffective assistance of counsel claim must set out in his or her motion sufficient alleged facts which, if proven, would establish the two prongs necessary for relief based upon ineffectiveness as outlined in Strickland." Nelson v. State, 875 So.2d 579, 582 (Fla.2004). "In a rule 3.850 motion, a defendant must therefore assert facts that support his or her claim that counsel's performance was deficient and that the defendant was prejudiced by counsel's deficient performance." Id. To establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In this case, Brown pleaded guilty to the charges. He now asserts, but for trial counsel's ineffective assistance, he would not have pleaded guilty and would have gone to trial. "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." Williams v. State, 717 So.2d 1066, 1067 (Fla. 2d DCA 1998). "However, in order to establish the prejudice prong of Strickland the defendant `must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Zakrzewski v. State, 866 So.2d 688, 694 (Fla.2003) (quoting Hill v. Lockhart, 474 U.S. 52, 57, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).

With regard to Claim Two, Brown argues trial counsel was ineffective in failing to file a motion to suppress his statements made to police, asserting he was given an inadequate Miranda warning. Prior to giving his statement to the police, Brown was read a Miranda warning which stated, in pertinent part: "You have the right to talk with a lawyer and have a lawyer present before any questioning." This court has found that this alone is an inadequate representation of an individual's rights, as it does not inform them of the right to have an attorney present during questioning. Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004).

While there are situations when the Miranda form in question, coupled with police instruction, has been held to be sufficient in advising an individual of their rights, there is no evidence in the record that shows this occurred in Brown's case. See Canete v. State, 921 So.2d 687 (Fla. 4th DCA 2006)(En Banc). As no evidentiary hearing was held below, this court must accept as true Bush's factual allegations "to the extent they are not refuted by the record." McLin, 827 So.2d at 954 (citing Foster v. State, 810 So.2d 910, 914 (Fla.), cert. denied, 537 U.S. 990, 123 S.Ct. 470, 154 L.Ed.2d 359 (2002) (citations omitted)). Therefore, Brown's assertion that he would not have entered a plea of guilty absent defense counsel's erroneous advice must be accepted as true.

While the State argues that there was more than enough evidence to convict Brown without the statements, resulting in no prejudice to Brown, this is not the type of prejudice that needs to be shown in a plea bargain case. As pointed out above, to show prejudice in a plea bargain case, Brown must show only that without the misadvice of counsel, there was a reasonable probability he would not have pleaded guilty and would have chosen to go to trial. We find that Brown's allegation of the resulting...

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3 cases
  • Ward v. State
    • United States
    • Court of Appeal of Florida (US)
    • June 24, 2008
    ......Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see also Zakrzewski v. State, 866 So.2d 688, 694 (Fla.2003); Smalls v. State, 973 So.2d 630, 631-32 (Fla. 1st DCA 2008); Brown v. State, 967 So.2d 440, 443 (Fla. 4th DCA 2007).         Although record attachments to the trial court's order conclusively demonstrate that appellant understood the maximum sentence he would face if tried on count I only, nothing in the record refutes appellant's claim that his attorney ......
  • Deck v. State
    • United States
    • Court of Appeal of Florida (US)
    • July 18, 2008
    ......State, 889 So.2d 868, 870 (Fla. 2d DCA 2004). Instead, "to show prejudice in a plea bargain case, [the defendant] must show only that without the misadvice of counsel, there was a reasonable probability he would not have pleaded guilty and would have chosen to go to trial." Brown v. State, 967 So.2d 440, 443 (Fla. 4th DCA 2007); see also Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (holding that in order to satisfy the "prejudice" requirement of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in a case involving a ......
  • Mondy v. State
    • United States
    • Court of Appeal of Florida (US)
    • March 6, 2009
    ......See Rouzard v. State, 952 So.2d 1290, 1292 (Fla. 4th DCA 2007) ("Counsel may be ineffective for not moving to suppress a defendant's statement made during a police interrogation if the statement was involuntary or the defendant did not receive adequate Miranda warnings."); see also Brown v. State, 967 So.2d 440, 443 (Fla. 4th DCA 2007) (reversing summary denial of claim that counsel was ineffective for failing to file a motion to suppress statements made to police after an inadequate Miranda warning). The postconviction court erred in concluding that the plea colloquy conclusively ......

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