FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pinellas County; Michael F.
Wesby, pro se.
Jo Bondi, Attorney General, Tallahassee, and John M.
Klawikofsky, Assistant Attorney General, Tampa, for Appellee.
Lamar Wesby appeals the denial of his motion for
postconviction relief. See Fla. R. Crim. P. 3.850.
The motion alleged thirteen separate grounds for relief, most
of which were summarily denied without an evidentiary
hearing, with the exception of Grounds 7a and 7b-these were
denied after an evidentiary hearing. We affirm the
postconviction court's ruling, with the exception of its
summary denial of Ground 3. Because Mr. Wesby's
allegation that his trial counsel was ineffective for failing
to move for disclosure of a confidential informant (CI) is
not conclusively refuted by the record, we reverse the
postconviction court's summary denial of Ground 3 and
remand for an evidentiary hearing.
Wesby allegedly participated in three controlled drug buys
with an undercover detective of the St. Petersburg Police
Department. The first buy was set up through a CI who
contacted Michael Brown-Mr. Wesby's brother-to arrange
the purchase. On October 9, 2008, the detective and the CI
met with Mr. Brown at a convenience store, and an
acquaintance of Mr. Brown's named "Dino" sold
the detective some Fioricet pills. The detective was led to
believe that these were actually hydrocodone pills, but they
October 23, 2008, "Dino" contacted the detective
and told him he may have some hydrocodone for sale.
"Dino" and the detective met in the front yard of a
residence, where "Dino" sold the detective
hydrocodone in liquid and pill form. Neither the CI nor Mr.
Brown took part in this transaction.
March 2, 2009, the detective contacted "Dino" and
asked him if he had any more hydrocodone. "Dino"
said that he did not, but that he had cocaine instead. The
detective then purchased an eight-ball of cocaine from
"Dino." Again, neither the CI nor Mr. Brown took
part in this transaction.
these three transactions, the detective was unable to
determine "Dino's" real name. But after the
detective researched the tag number of Michael Brown's
car, he found records of a previous traffic stop during which
Mr. Wesby was present in the car. The detective then obtained
a photograph of Mr. Wesby and identified him as
on the detective's identification of Mr. Wesby as
"Dino, " Mr. Wesby was charged and adjudicated
guilty of unlawful sale of a prescription drug, trafficking
in hydrocodone, sale of cocaine, and possession of cocaine.
Mr. Wesby's defense at trial was misidentification. Mr.
Wesby was sentenced to a term of imprisonment for an overall
length of twenty-five years, with a twenty-five-year minimum
mandatory sentence for the trafficking charge. This court
affirmed Mr. Wesby's convictions and sentences on direct
appeal. Wesby v. State, 109 So.3d 803 (Fla. 2d DCA
2013) (table decision).
Wesby then filed his pro se motion for postconviction relief.
In Ground 3 of his operative motion, Mr. Wesby alleged that
his trial counsel was ineffective for failing to move for
disclosure of the CI. Mr. Wesby further alleged in his
operative motion (1) that Mr. Wesby informed his counsel that
he is not the person who sold drugs to the detective, (2)
that disclosure of the CI was necessary to establish the
defense of misidentification, (3) that the CI was present for
the first controlled buy, (4) that the State's only
identification testimony came from the detective, and (5)
that had defense counsel moved for disclosure of the CI and
then called him or her to testify, the CI would have
corroborated Mr. Wesby's claim that he was misidentified
response, the State points to one sentence in Mr. Wesby's
motion which provides that the detective's
"identification testimony was the only evidence
submitted to the jury to prove . . . the [h]ydrocodone
trafficking charge." (Emphasis added.) Because the
CI was only present for the October 9 transaction and not the
October 23 transaction-which is when the detective first
received real hydrocodone from "Dino"-the State
argues that disclosure of the CI would have been immaterial
to the hydrocodone trafficking charge. Moreover, even if the
CI had been disclosed and called to testify, the State
maintains that the detective's trial testimony would not
have changed and that Mr. Wesby would have been convicted
anyway. In summarily denying Ground 3, the postconviction
court adopted the State's position wholesale. We disagree
and reverse. Mr. Wesby was, at minimum, entitled to an
evidentiary hearing on Ground 3 of his motion for
prevail on a claim of ineffective assistance of counsel, a
defendant must show (1) that counsel's performance was
unreasonable under prevailing professional norms and (2) that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. See generally Thompson v.
State, 990 So.2d 482, 489-90 (Fla. 2008) (citing
Strickland v. Washington, 466 U.S. 668, 687-88
(1984)). Where no evidentiary hearing is held on an issue in
a postconviction motion, "we must accept the
defendant's factual allegations to the extent they are
not refuted by the record." Foster v. State,
810 So.2d 910, 914 (Fla. 2002) (quoting Peede v.
State, 748 So.2d 253, 257 ...