FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from an order of the Circuit Court for Hamilton
County. Andrew J. Decker, III, Judge.
Michelle Fry, pro se, Appellant.
Jo Bondi, Attorney General, and Julian E. Markham, Assistant
Attorney General, Tallahassee, for Appellee.
Fry appeals the trial court's summary denial of her
postconviction motion filed pursuant to Florida Rule of
Criminal Procedure 3.850. We affirm the trial court's
denial of Appellant's second claim without further
discussion. However, we reverse the trial court's denial
of Appellant's other two claims because they are legally
sufficient and not conclusively refuted by the record below.
September 4, 2012, Ms. Fry and her co-defendant husband
entered guilty pleas to drug-related charges. Ms. Fry
subsequently filed a timely motion seeking postconviction
relief, which the trial court summarily denied on August 2,
2016. In denying Appellant's first and third claims, the
trial court cited Clift v. State, 43 So.3d 778 (Fla.
1st DCA 2010), for the proposition that Ms. Fry's counsel
did not have a duty to further investigate or challenge the
evidence after she pled guilty. But Ms. Fry did not allege in
her postconviction motion that her counsel was ineffective
for failing to further investigate or challenge the evidence
against her. Indeed, the trial court would have been
justified in summarily denying such a claim. See Stano v.
State, 520 So.2d 278, 280 (Fla. 1988) ("By
insisting on pleading guilty . . . [the defendant] rendered
any further investigation pointless."). Rather, Ms. Fry
claimed that her counsel failed to investigate and challenge
evidence, and failed to inform her of potential defenses
prior to her entering her plea. "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." MacKinnon v. State, 39 So.3d 537,
538 (Fla. 5th DCA 2010) (quoting Williams v. State,
717 So.2d 1066, 1066 (Fla. 2d DCA 1998)). See also Smith
v. State, 815 So.2d 707, 707-08 (Fla. 1st DCA 2002)
(holding that the appellant's claim was facially
sufficient and not negated by his plea where appellant
alleged that counsel failed to properly investigate a
potential defense witness and that appellant would not have
entered a plea in the absence of the alleged failure).
first and third claims in Ms. Fry's 3.850 motion state
valid potential defenses. Ms. Fry first claimed that her
counsel was ineffective for failing to investigate and inform
her regarding a lab report used to establish the weight and
substance of the drugs in her case. Ms. Fry asserts that the
lab report did not have her name on it, but that of her
brother Robert Barwick. Ms. Fry says that she would have gone
to trial had she been advised that the critical lab report
received by her counsel, and cited as evidence supporting the
drug charges against her, didn't actually apply to her.
Fry's third claim argued that her counsel was ineffective
for not investigating and informing her of viable defenses
related to the law of constructive possession. Ms. Fry
asserts that she wasn't present and had no control or
influence over the garage/utility area of the home she shared
with her co-defendant husband, where authorities found the
illegal drugs and accompanying paraphernalia. Ms. Fry asserts
that had she been properly advised of defenses related to
constructive possession, she would not have pled guilty to
multiple possession counts.
claim of ineffective assistance of counsel for failure to
advise a 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."
Jacobson v. State, 171 So.3d 188, 191 (Fla. 4th DCA
2015). Because Ms. Fry's first and third claims were
legally sufficient, the trial court should have attached to
the order below portions of the record conclusively refuting
them, or held an evidentiary hearing. State v.
Leroux, 689 So.2d 235, 237 (Fla. 1996) ("Rule 3.850
explicitly requires that the record 'conclusively'
rebut an otherwise cognizable claim if it is to be denied
without a hearing."); see also Watts v. State,
136 So.3d 1225 (Fla. 1st DCA 2014) (concluding that attached
records failed to conclusively refute appellant's claim);
Stano v. State, 520 So.2d 278 (Fla. 1988) (attaching
sufficient records to show that appellant knew when he
entered his plea that his attorney had not finished
investigating); Wilson v. State, 871 So.2d 298 (Fla.
1st DCA 2004) (attaching sufficient records showing that
appellant knowingly waived the right to pursue the claim that
trial counsel failed to develop viable defenses to the
charges against him).
we affirm the denial of claim two, but reverse and remand the
denial of claims one and three for further proceedings. On
remand, the court should either attach portions of the record
conclusively refuting Ms. Fry's first and third claims,
or hold an evidentiary hearing.
in part, REVERSED in part, and ...