final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Marianne L.
Thomas, Public Defender, and Barbara J. Busharis, Assistant
Public Defender, Tallahassee, for Appellant.
Moody, Attorney General, and Jennifer J. Moore, Assistant
Attorney General, Tallahassee, for Appellee.
Hartley was 15 years old when he took the life of a pizza
delivery driver during a series of armed robberies. He
ultimately entered a negotiated plea to second-degree murder,
attempted armed robbery, and armed robbery. The court
sentenced him to life in prison with a minimum mandatory term
of 40 years for the second-degree murder, 15 years for the
attempted armed robbery with a 15-year minimum mandatory
term, and 20 years for the armed robbery.
this court affirmed his convictions and sentences on direct
appeal, Hartley filed pro se motions for postconviction
relief under Florida Rule of Criminal Procedure 3.850
challenging his life sentence and asserting claims of
ineffective assistance of trial counsel. The court granted
his motions in part-ordering resentencing for the
second-degree murder based on Miller v. Alabama, 567
U.S. 460 (2012)-but denied his remaining claims without a
hearing. This is Hartley's appeal from that order.
initial brief filed through appointed counsel, Hartley argues
that the court erred in summarily denying his claims
regarding counsel's failure to seek suppression of
certain pretrial statements and the alleged failure to advise
him regarding available defenses. We affirm the denial of the
latter claim without comment but reverse and remand for
further proceedings on the former.
the suppression claim, Hartley alleged that his guilty plea
was both involuntary and entered without the assistance of
reasonably effective counsel because counsel did not
challenge the admission of statements obtained in violation
of his privilege against self-incrimination. He asserted that
after he had invoked his right to remain silent and his right
to counsel, law enforcement used his mother as their agent to
interrogate and pressure him into making admissions without
counsel being present. He argued that although counsel did
file a motion to suppress his inculpatory statements, the
motion failed to allege as a basis for suppression that he
was interrogated after he had invoked his rights. The court
summarily denied the claim as refuted by the record, relying
on the motion to suppress and transcripts from the plea
a review of the motion to suppress reveals that it did not
raise the legal theory advanced in Hartley's rule 3.850
motion. Nor was there any discussion during Hartley's
plea colloquy on the motion to suppress or any advice given
to him about the potential suppression of his statements. And
the fact that he entered into the plea agreement did not
negate the possibility of ineffective assistance of counsel.
See MacKinnon v. State, 39 So.3d 537, 538 (Fla. 5th
conceded by the State in response to this court's
Tolerorder, the record on appeal does not
conclusively refute Hartley's claim on the motion to
suppress his inculpatory statements. Even so, this claim is
facially insufficient and should have been dismissed. It is
impossible to evaluate whether the claim would have presented
a viable theory to support a motion to suppress based solely
on the conclusory allegations that Hartley's mother acted
as an agent of law enforcement at the time of the police
interview. See Floyd v. State, 257 So.3d 1148, 1152
(Fla. 1st DCA 2018) (concluding that a claim of ineffective
assistance of counsel for failing to file a motion to
suppress was facially insufficient where the defendant failed
to allege any supporting facts to show that the evidence
would have been subject to suppression). We therefore reverse
the portion of the order that denied this claim as refuted by
the record and remand for the court to provide Hartley with
an opportunity to state a facially sufficient claim. See
Ferris v. State, 996 So.2d 228, 229 (Fla. 1st DCA 2008)
(requiring an opportunity to amend because "[t]he trial
court did not deny the claim on the basis of facial
insufficiency, and, as such, the appellant could not have
been aware of the application of Spera [v.
State, 971 So.2d 754 (Fla. 2007), ] to this
in part and Reversed and Remanded in part for further
C.J., and Wetherell and ...