FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Orange County, Robert J.
William R. Ponall of Ponall Law, Maitland, and Matthew P.
Ferry, of Lindsey & Ferry, P.A., Winter Park, for
Jo Bondi, Attorney General, Tallahassee, Bonnie Jean Parrish
and Marjorie Vincent-Tripp, Assistant Attorneys General,
Daytona Beach, for Appellee.
Guevara ("Appellant") appeals the trial court's
summary denial of his Florida Rule of Criminal Procedure
3.850 motion, filed after Appellant pled no contest to the
offenses of cultivation of cannabis and theft of utilities.
Appellant raised two claims in his 3.850 motion, contending
counsel was ineffective for (1) failing to advise Appellant
of a meritorious suppression issue and (2) misadvising
Appellant of the deportation consequences of his plea. We
reverse and remand for an evidentiary hearing on
Appellant's first claim and affirm as to the second claim
day of Appellant's arrest, officers approached his home
and knocked on his door after receiving complaints of a grow
operation at Appellant's home. Appellant answered, but
refused to allow the officers to search his home.
Nevertheless, while standing at the front door, the officers
detected the smell of marijuana emanating from
Appellant's residence. Thereafter, the officers placed
Appellant in handcuffs and conducted a "security
sweep" of Appellant's home. Subsequently, the
officers secured a search warrant and discovered a grow
operation in the residence consisting of thirty-six cannabis
rule 3.850 motion, Appellant alleged that (1) his residence
was not open to the public; (2) postal workers were not free
to approach his home; (3) there was a large amount of land
and a lengthy driveway between his residence and the public
road; (4) the driveway was blocked by a chain; and (5) a sign
indicating "Private Property, Keep Out" was posted
at the end of the driveway. Based on these allegations,
Appellant asserts that he had a reasonable expectation of
privacy in the land that stretched from the front of his home
to the public road; thus, the officers lacked the authority
to enter onto his land without having first secured a
warrant. Furthermore, Appellant argues that because the
officers' entry onto Appellant's land prior to
knocking on his front door was unauthorized, any search of
his residence that followed violated his Fourth Amendment
right to be secure from an unreasonable search and seizure.
Accordingly, Appellant contends that defense counsel was
ineffective for failing to advise him of a potentially
meritorious motion to suppress, and that had Appellant been
so advised, he would not have entered his plea.
prevail on a claim of ineffective assistance of counsel, a
party must demonstrate both deficient performance by counsel
and prejudice. Strickland v. Washington, 466 U.S.
668, 687 (1984). A defendant cannot establish deficient
performance for failure to pursue the suppression of evidence
where the defendant fails to allege meritorious grounds for
relief. See Zakrzewski v. State, 866 So.2d 688, 694
(Fla. 2003). Moreover, "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.'"
Bush v. State, 964 So.2d 181, 182 (Fla. 4th DCA
2007) (citing Zakrzewski, 866 So.2d at 694 (quoting
Hill v. Lockhart, 474 U.S. 52, 57, 59 (1985))).
State concedes, the facts as alleged by Appellant, which we
are required to accept as true,  set forth a facially
sufficient claim for ineffective assistance of counsel.
Cf. Bainter v. State, 135 So.3d 517, 520 (Fla. 5th
DCA 2014) (reversing order denying defendant's motion to
suppress because "the posting of . . . signs and the
fencing of the entire property, including a push gate at the
entrance to the driveway, exhibited the defendant's
actual, subjective expectation of privacy" in a manner
that society is prepared to recognize as reasonable and,
thus, law enforcement was first required to obtain a warrant
before entering onto defendant's property). Moreover, the
record before this court does not conclusively refute
Appellant's allegations on this claim. Therefore, we
reverse the summary denial of Appellant's motion on this
ground and remand for an evidentiary hearing. We otherwise
in Part; REVERSED in Part; and REMANDED.
PALMER, EDWARDS and EISNAUGLE, JJ, concur