Opinion
No. 2D04-2062.
February 2, 2005.
Appeal from the Circuit Court, Hillsborough County, Wayne S. Timmerman, J.
Samuel Jackson, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.
Samuel Jackson appeals the denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to all of his claims, save one.
Jackson was convicted of robbery with a deadly weapon and sentenced to life as a prison releasee reoffender. His conviction and sentence were affirmed on direct appeal. Jackson v. State, 782 So.2d 876 (Fla. 2d DCA 2001) (table decision). In Jackson's motion for postconviction relief, he alleged that defense counsel was ineffective for failing to file a motion to suppress a highly suggestive photopak. The court summarily denied this claim as facially insufficient, citing Gettel v. State, 449 So.2d 413 (Fla. 2d DCA 1984) (stating that failure to file groundless motion to suppress was not ineffective assistance). But Gettel was inapplicable because the officers' warrantless search in that case was expressly allowed by statute, whereas a photopak is subject to suppression if it is highly suggestive, as alleged in Jackson's motion. See M.J.S. v. State, 386 So.2d 323 (Fla. 2d DCA 1980) (reversing denial of motion to exclude in-court identification based on impermissibly suggestive photopak). Thus, Jackson stated a facially sufficient claim regarding counsel's failure to file a motion to suppress. See McDaniel v. State, 523 So.2d 1225 (Fla. 2d DCA 1988) (reversing summary denial of claim that counsel was ineffective by failing to move for suppression of in-court identification based on impermissibly suggestive pretrial show up). Accordingly, we reverse the summary denial of this one claim and remand for further proceedings.
Affirmed in part, reversed in part, and remanded.
CASANUEVA and SALCINES, JJ., concur.