JOHNNY L. JONES, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Putnam County, Patti A.
L. Jones, Milton, pro se.
Jo Bondi, Attorney General, Tallahassee, and Kaylee D.
Tatman, Assistant Attorney General, Daytona Beach, for
L. Jones appeals pro se the denial of his motion for
postconviction relief alleging ineffective assistance of
counsel. We reverse the summary denial of grounds three and
seven and remand with instructions. We affirm the denial of
the remaining grounds without discussion.
November 20, 2012, a jury found Jones guilty of grand theft
and burglary while armed with a firearm. The trial court
sentenced Jones as a prison releasee reoffender to life in
prison. Jones filed a pro se, twelve-ground motion for
postconviction relief, alleging ineffective assistance of
counsel. The postconviction court summarily denied all
grounds except two and eleven, for which it set an
evidentiary hearing. Jones now challenges the court's
summary denial of these grounds, which the State declines to
address on appeal.
standard of review of a summary denial of a rule 3.850 motion
is de novo." Lebron v. State, 100 So.3d 132,
133 (Fla. 5th DCA 2012) (citing McLin v. State, 827
So.2d 948, 954 (Fla. 2002)). "To uphold the trial
court's summary denial of claims raised in a 3.850
motion, the claims must be either facially invalid or
conclusively refuted by the record." Peede v.
State, 748 So.2d 253, 257 (Fla. 1999) (citing Fla. R.
Crim. P. 3.850(d)). "Further, where no evidentiary
hearing is held below, we must accept the defendant's
factual allegations to the extent they are not refuted by the
record." McLin, 827 So.2d at 954 (quoting
Foster v. State, 810 So.2d 910, 914 (Fla. 2002)).
ground three, Jones argued his trial counsel provided
ineffective assistance by failing to call Assistant State
Attorney Chris Ferebee during a suppression hearing. A
facially sufficient claim of ineffective assistance for
failure to call a witness must allege: "the identity of
the potential witness, the substance of the witness'
testimony, an explanation of how the omission of the
testimony prejudiced the outcome of the case, and a
representation that the witness was available for
trial." Spellers v. State, 993 So.2d 1117, 1118
(Fla. 5th DCA 2008) (citing Leftwich v. State, 954
So.2d 714 (Fla. 1st DCA 2007)). Jones alleged that Ferebee
would have testified that law enforcement communicated to him
that they also arrested Jones's mother, resulting in
Jones's cooperation in exchange for the possibility of
order denying ground three, the postconviction court noted
that the trial court denied the motion to suppress without a
hearing and attached the relevant motion and order. On
appeal, Jones challenges the postconviction court's
findings by asserting that a suppression hearing actually did
occur, referring to it as the "hearing held on November
12, 2012, " which coincides with his trial date. A
review of the transcript in Jones's direct appeal
demonstrates that the trial court heard the motion to
suppress before proceeding to trial, considering argument
from both sides. The State presented two witnesses, and
Jones testified on his own behalf. Thus, the postconviction
court incorrectly stated that no hearing occurred.
postconviction court further found that Ferebee's
deposition, purportedly attached to the order, refuted
Jones's claim of coercion. However, the record does not
include the deposition as an attachment. Although the
postconviction court described "Appendix D" as
containing Ferebee's deposition, the appendix, perhaps
mistakenly, contains only Jones's mother's
deposition, not Ferebee's. Thus, because the order does
not include record attachments conclusively refuting ground
three, we reverse and remand for the postconviction court to
"attach the correct records or address the claim on the
merits." See Hunter v. State, 187 So.3d 1265,
1265 (Fla. 5th DCA 2016) (citing Fla. R. Crim. P.
ground seven, Jones argued his trial counsel provided
ineffective assistance by failing to request an
"independent act" jury instruction based on his
allegation that "no guns were taken to burglarized home,
he did not enter the home, and it had been agreed upon
beforehand that no guns would be used or taken. Co-defendant
acquired guns from inside of the home." "The
'independent act' doctrine applies 'when one
cofelon, who previously participated in a common plan, does
not participate in acts committed by his cofelon, "which
fall outside of, and are foreign to, the common design of the
original collaboration."'" Roberts v.
State, 4 So.3d 1261, 1263 (Fla. 5th DCA 2009) (quoting
Ray v. State, 755 So.2d 604, 609 (Fla. 2000)).
However, "an independent act instruction is
inappropriate when the unrebutted evidence shows the
defendant knowingly participated in the underlying criminal
enterprise when the murder occurred or knew that firearms or
deadly weapons would be used." Id. at 1264.
the information charged Jones with burglary with a firearm,
the charging affidavit supports Jones's assertion that
his cofelons acquired the weapons within the burglarized
home. Jones asserted that he never entered the home, acting
only as getaway driver to "straight burglary."
Thus, the facts of this case suggest that Jones did not know
"that firearms or deadly weapons would be used."
See id. In its order, the postconviction court
summarized Jones's version of events, found that trial
counsel offered a persuasive hypothetical in support of his
theory of the case, and then concluded, without elaboration,
"Even if [Jones] did not go inside the house but stayed
outside as the driver, the Independent Act Doctrine would not
have applied in this particular case." However, because
the evidence showed that Jones never entered the home,
planned for the use of a firearm, nor anticipated the
recovery of firearms within the home, Jones raised a facially
valid ground for relief. See id. Thus, the
postconviction court erred by summarily denying this ground.
See Peede, 748 So.2d at 257. We reverse and remand
for the ...