legally sufficient claim in Florida

2024Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000) (citations omitted).

2015See Troy v. State, 57 So.3d 828, 840 (Fla.2011) (“Conclusory allegations are not sufficient to establish a legally sufficient claim for post-conviction relief.” (citing Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000))); cf. Howell, 133 So.3d at 521-23 (rejecting Howell’s attempt to satisfy the burden of proof regarding the constitutionality of midazo-lam by demonstrating weaknesses of the State’s testimony).

2017However, a rule 3.850 motion alleging that “trial counsel provided ineffective assistance by failing to file a motion to suppress is a legally sufficient claim, which is not waived by an entry of a plea.” Spencer v. State, 889 So.2d 868, 870 (Fla. 2d DCA 2004) (citations omitted); see also MacKinnon v. State, 39 So.3d 537, 538 (Fla. 5th DCA 2010).

2017In Hampton v. State, 217 So.3d 1096 (Fla. 5th DCA 2017), this court recently held that a postconviction court erred in determining that a defendant’s no-contest plea precluded a postconviction attack on the admissibility of evidence because “a rule 3.850 motion alleging that ‘trial counsel provided ineffective assistance by failing to file a motion to suppress is a legally sufficient claim, which is not waived by an entry of a plea.’ ” 217 So.3d at 1097 (quoting Spencer v. State, 889 So.2d 868, 870 (Fla. 2d DCA 2004)).

2018P. 3.850(f)(2); Spera v. State, 971 So. 2d 754, 761 (Fla. 2007). 3 Accordingly, we reverse the order on appeal and remand with directions that the postconviction court provide Murray with sixty days to file an amended motion to state a legally sufficient claim for relief.

2018The trial court correctly noted that these “generalized allegations” were legally insufficient to state a claim of ineffective assistance and that the defendant further failed to allege how counsel’s performance caused the requisite “prejudice.” Having found this claim insufficient on its face, however, the trial court was bound pursuant to rule 3.850(f)(2) and Spera v. State, 971 So. 2d 754 (Fla. 2007) to permit the movant an opportunity to amend within 60 days to state a legally sufficient claim.

2015See Troy v. State, 57 So.3d 828, 840 (Fla.2011) (“Conclusory allegations are not sufficient to establish a legally sufficient claim for post-conviction relief.” (citing Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000))); cf. Howell, 133 So.3d at 521-23 (rejecting Howell’s attempt to satisfy the burden of proof regarding the constitutionality of midazo-lam by demonstrating weaknesses of the State’s testimony).

2014See Troy v. State, 57 So.3d 828, 840 (Fla.2011) (rejecting claim that defendant was entitled to evidentiary hearing regarding any potential issues concerning venous access as insufficiently pleaded because defendant failed to allege a medical condition that would contribute to difficulty in gaining venous access and conclusory allegations do not establish a legally sufficient claim for postconviction relief); Schwab v. State, 995 So.2d 922, 930 (Fla.2008) (lethal injection protocol involving consciousness check by execution team warden does not violate Eighth Amendment); Lightboume v. McCollum

2017“The burden is on the defendant to establish a legally sufficient claim.” Nixon v. State, 932 So. 2d 1009, 1018 (Fla. 2006).

2016“The burden is on the defendant to establish a legally sufficient claim.” Duckett v. State, 148 So.3d 1163, 1168 (Fla.2014) (quoting Nixon v. State, 932 So.2d 1009, 1018 (Fla.2006)).

2012This court held in Williams v. State, 717 So.2d 1066, 1066 (Fla. 2d DCA 1998), that “[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.” See also Spencer v. State, 889 So.2d 868, 870 (Fla. 2d DCA 2004) (“An allegation that trial counsel provided ineffective assistance by failing to file a motion to suppress is a legally sufficient claim, which is not waived by entry of a plea.”).

2010“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.” Williams v. State, 717 So.2d 1066 (Fla. 2d DCA 1998); see also Spencer v. State, 889 So.2d 868, 870 (Fla. 2d DCA 2004) (“An allegation that trial counsel provided ineffective assistance by failing to file a motion to suppress is a legally sufficient claim, which is not waived by entry of a plea.”).

2008After reviewing Rivera’s motion, the State’s response, and the record before us, we conclude that Rivera “has stated a legally sufficient claim and that a factual dispute exists as to whether [Rivera] was in custody for purposes of Miranda, whether his rights were violated, and whether counsel was ineffective for failing to investigate and file a motion to suppress.” Chouquer v. State, 950 So.2d 1276, 1277 (Fla. 2d DCA 2007); see also Savage v. State, 832 So.2d 807, 809 (Fla. 2d DCA 2002); Cintron v. State, 508 So.2d 1315, 1316 (Fla. 2d DCA 1987).

2007See Savage v. State, 832 So.2d 807, 809 (Fla. 2d DCA 2002); Cintron v. State, 508 So.2d 1315, 1316 (Fla. 2d DCA 1987).

2008See Flowers v. State, 793 So.2d 36 (Fla. 2d DCA 2001) (holding that ineffective assistance of counsel claim based on failure to seek suppression of evidence was legally sufficient and not waived by guilty plea).

2004See Flowers v. State, 793 So.2d 36, 36-37 (Fla. 2d DCA 2001) (concluding that the probable cause affidavit did not conclusively refute the claim and if counsel had filed a motion to suppress the trial court would have had to determine the issue of consent to the search).

2026See also Gonzalez v. State, 329 So. 3d 263 , 263 (Fla. 3d DCA 2021) (“A trial court abuses its discretion when it summarily denies a timely 3.850 motion, without permitting amendment.”); Charles v. State, 193 So. 3d 46, 47 (Fla. 3d DCA 2016) (“To the extent that a postconviction claim is conclusory or otherwise facially insufficient, the trial court should not deny the claim on its merits, but instead 2 should enter a nonfinal order that provides the defendant the opportunity to amend the motion to state a legally sufficient claim for relief.”).

2018See, e.g., Charles v. State, 193 So. 3d 46 (Fla. 3d DCA 2016); Williams v. State, 175 So. 3d 349 (Fla. 3d DCA 2015); and Marckson v. State, 151 So. 3d 44 (Fla. 3d DCA 2014).

2021This is so “because a legally sufficient rule 1.540 motion by definition entails matters which (at least ordinarily) were not presented to, or considered by, the predecessor judge.” Batista v. Batista, 553 So. 2d 1281, 1282 (Fla. 3d DCA 1989).

2007This is so "because a legally sufficient rule 1.540 motion by definition entails matters which (at least ordinarily) were not presented to, or considered by, the predecessor judge." Batista v. Batista, 553 So.2d 1281, 1282 (Fla. 3d DCA 1989).

2017See Jenkins v. State, 44 So.3d 243, 244 (Fla. 2d DCA 2010) (holding that defendant’s acknowledgment during plea colloquy that he was satisfied with counsel’s performance did not refute claim that counsel failed to investigate where defendant’s motion did not state when he learned of counsel’s failure); see also Coursey v. State, 164 So.3d 119, 120 (Fla. 2d DCA 2015) (“[A]n allegation that trial counsel provided ineffective assistance by failing to file a motion to suppress is a legally sufficient claim, which is not waived by entry of a plea.” (quoting Campbell v. State, 139 So.3d 490, 497 (Fl

2015However, as noted by this court in Campbell v. State, 139 So.3d 490, 497 (Fla. 2d DCA 2014), “[a]n allegation that trial counsel provided ineffective assistance by failing to file a motion to suppress is a legally sufficient claim, which is not waived by entry of a plea.” (quoting Spencer v. State, 889 So.2d 868, 870 (Fla. 2d DCA 2004)).

2015Although he stated a legally sufficient claim, Mr. Coursey failed to allege that he suffered prejudice as a result of counsel’s conduct, “i.e., that there is a reasonable probability that, but for counsel’s errors, he would have insisted on going to trial.” Campbell, 139 So.3d at 497 (citing Nelson v. State, 996 So.2d 950, 952 (Fla. 2d DCA 2008)).

2015Although he stated a legally sufficient claim, Mr. Coursey failed to allege that he suffered prejudice as a result of counsel’s conduct, “i.e., that there is a reasonable probability that, but for counsel’s errors, he would have insisted on going to trial.” Campbell, 139 So.3d at 497 (citing Nelson v. State, 996 So.2d 950, 952 (Fla. 2d DCA 2008)).

2014See Troy v. State, 57 So. 3d 828, 840 (Fla. 2011) (rejecting claim that defendant was entitled to evidentiary hearing regarding any potential issues concerning venous access as insufficiently pleaded because defendant failed to allege a medical condition that would contribute to difficulty in gaining venous access and conclusory allegations do not establish a legally sufficient claim for -9- postconviction relief); Schwab v. State, 995 So. 2d 922, 930 (Fla. 2008) (lethal injection protocol involving consciousness check by execution team warden does not violate Eighth Amendment); Lightbourne v.

2014See Troy v. State, 57 So.3d 828, 840 (Fla.2011) (rejecting claim that defendant was entitled to evidentiary hearing regarding any potential issues concerning venous access as insufficiently pleaded because defendant failed to allege a medical condition that would contribute to difficulty in gaining venous access and conclusory allegations do not establish a legally sufficient claim for postconviction relief); Schwab v. State, 995 So.2d 922, 930 (Fla.2008) (lethal injection protocol involving consciousness check by execution team warden does not violate Eighth Amendment); Lightboume v. McCollum

2014See Troy v. State, 57 So. 3d 828, 840 (Fla. 2011) (rejecting claim that defendant was entitled to evidentiary hearing regarding any potential issues concerning venous access as insufficiently pleaded because defendant failed to allege a medical condition that would contribute to difficulty in gaining venous access and conclusory allegations do not establish a legally sufficient claim for -9- postconviction relief); Schwab v. State, 995 So. 2d 922, 930 (Fla. 2008) (lethal injection protocol involving consciousness check by execution team warden does not violate Eighth Amendment); Lightbourne v.

2014See Troy v. State, 57 So.3d 828, 840 (Fla.2011) (rejecting claim that defendant was entitled to evidentiary hearing regarding any potential issues concerning venous access as insufficiently pleaded because defendant failed to allege a medical condition that would contribute to difficulty in gaining venous access and conclusory allegations do not establish a legally sufficient claim for postconviction relief); Schwab v. State, 995 So.2d 922, 930 (Fla.2008) (lethal injection protocol involving consciousness check by execution team warden does not violate Eighth Amendment); Lightboume v. McCollum

2008After reviewing Rivera’s motion, the State’s response, and the record before us, we conclude that Rivera “has stated a legally sufficient claim and that a factual dispute exists as to whether [Rivera] was in custody for purposes of Miranda, whether his rights were violated, and whether counsel was ineffective for failing to investigate and file a motion to suppress.” Chouquer v. State, 950 So.2d 1276, 1277 (Fla. 2d DCA 2007); see also Savage v. State, 832 So.2d 807, 809 (Fla. 2d DCA 2002); Cintron v. State, 508 So.2d 1315, 1316 (Fla. 2d DCA 1987).

2007See Savage v. State, 832 So.2d 807, 809 (Fla. 2d DCA 2002); Cintron v. State, 508 So.2d 1315, 1316 (Fla. 2d DCA 1987).

1996Id.; see also Small v. State, 624 So.2d 417 (Fla. 5th DCA 1993).

1994See Small v. State, 624 So.2d 417 (Fla.5th DCA 1993).

2019"To state a legally sufficient claim of ineffective assistance of counsel, [the defendant] is required to show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced his defense." Martin, 205 So. 3d at 812 (citing Strickland, 466 U.S. at 694 ).

2019Curran v. State, 229 So. 3d 1266, 1268-69 (Fla. 1st DCA 2017) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

2015App. P. 9.141(b)(2)(D) (providing that, on appeal from a summary denial of a rule 3.850 motion for postconviction relief under rule 3.850, “unless the record shows conclusively that the appellant is entitled to no relief, *361 the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.”) See Oisorio v. State, 676 So.2d 1363 (Fla.1996)(defense counsel’s misadvice or interference with client’s right to' testify in his own defense can constitute a legally sufficient claim of ineffective assistance under Strickland)-, Ferrer v. State, 2 So.3d 1111 (Fl

2012See Ferrer v. State, 2 So.3d 1111 (Fla. 4th DCA 2009).

2009Strickler v. Greene, 527 U.S. 263, 281-82 , 119 S.Ct. 1936 , 144 L.Ed.2d 286 (1999); see also Way, 760 So.2d at 910 .

2008Rivera's allegations do not establish that the allegedly undisclosed evidence is material. "[T]he `ultimate test' in determining if a Brady violation occurred is whether `confidence in the outcome of the trial is undermined to the extent that there is a reasonable probability that had the information been disclosed to the defendant, the result of the proceeding would have been different.'" Way, 760 So.2d at 912 (quoting Young v. State, 739 So.2d 553, 559 (Fla. 1999)).

2006In Gaskin , the court declared a movant was not required to name the witnesses or describe the expected testimony in order to have a legally sufficient claim. 737 So.2d at 514 n. 10.

2001Under rule 3.850, a "movant is entitled to an evidentiary hearing on a claim of ineffective assistance of counsel if he alleges specific `facts which are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant.'" Gaskin v. State, 737 So.2d 509, 516 (Fla.1999) (citing Roberts v. State, 568 So.2d 1255, 1259 (Fla.1990)).

2023The legally sufficient standard “requires a determination as to whether the alleged facts would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” Rodriguez v. State, 919 So. 2d 1252, 1274 (Fla. 2005); see also Aberdeen Prop.