Summary
remanding for trial court to conduct evidentiary hearing on defendant's claim that counsel was ineffective in failing to move to suppress cocaine based on the State's inability to establish chain of custody
Summary of this case from State v. HamptonOpinion
No. 1D07-5998.
May 5, 2008.
Appeal from the Circuit Court, Baker County, Peter K. Sieg, J.
Michael Montez Rhodes, pro se, Appellant.
Bill McCollum, Attorney General, and C. Bowen Robinson, Assistant Attorney General, Tallahassee, for Appellee.
The appellant challenges an order by which the trial court summarily denied each of the claims raised in the appellant's Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. All but one of the claims were properly denied.
The appellant alleged in his motion that his trial counsel was ineffective for failing to file a motion to suppress evidence based upon the prosecution's inability to establish a proper chain of custody. The appellant contends that both the confidential source and the arresting officer testified in depositions that a single piece of a substance suspected to be cocaine was taken from him and surrendered to the Baker County evidence custodian; however, two pieces of cocaine were received from the Baker County Sheriff's Office for testing. The appellant alleges that if his counsel had filed a motion to suppress asserting the prosecution's inability to establish a proper chain of custody, the court would have suppressed the cocaine, and the case against him. would have been dismissed. Because this is a facially sufficient claim which is not conclusively refuted by the attachments to the order, the trial court erred in summarily denying the claim. See Doss v. State, 644 So.2d 124 (Fla. 1st DCA 1994). The appealed order is accordingly reversed as to the trial court's disposition of this claim, but is otherwise affirmed, and this case is remanded.
ALLEN, WOLF, and POLSTON, JJ., concur.