Summary
holding that the appellant's claim was facially sufficient and not negated by his plea where appellant alleged that counsel failed to properly investigate a potential defense witness and that appellant would not have entered a plea in the absence of the alleged failure
Summary of this case from Fry v. StateOpinion
No. 1D01-1712.
April 22, 2002.
Appeal from the Circuit Court for the Duval County, Henry E. Davis, J.
Derrick Smith, Pro Se.
Robert A. Butterworth, Attorney General, and Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
The appellant challenges an order summarily denying a Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We affirm the order except as to the claim based on counsel's alleged failure to properly investigate and interview a potential defense witness. This was a facially sufficient claim in accordance with cases such as Marrow v. State, 715 So.2d 1075 (Fla. 1st DCA 1998). Furthermore, this claim was not negated by the appellant's plea, as the motion indicates that he would not have entered such a plea in the absence of the alleged failure. See Thomas v. State, 734 So.2d 1138 (Fla. 1st DCA 1999). Because this claim is facially sufficient and is not refuted by the attachments to the appealed order, it should not have been summarily denied. The order is therefore reversed as to the denial of this claim, and the case is remanded for further proceedings as described in Marrow.
MINER and DAVIS, JJ., concur.