Opinion
No. 4D05-3750.
June 28, 2006.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Paul L. Backman, Judge, L.T. Case No. 04-12596 CF10A.
Jermaine Atterbury, Miami, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
Appellant alleges his counsel was ineffective for advising appellant to waive his motion to suppress and plead guilty "because the trial judge was going to deny [the motion] and that would foreclose the state plea offer," in spite of the fact that appellant's confession — the only evidence in the case — was made to police after being given defective Miranda warnings. See Stancle v. State, 917 So. 2d 911 (Fla. 4th DCA 2005); Coney v. State, ___ So. 2d ___, 2006 WL 398431, 31 Fla. L. Weekly D591 (Fla. 4th DCA Feb. 22, 2006) (allegation that trial counsel was ineffective in failing to move for suppression of statement made after defective Miranda warnings was legally sufficient). If not for such advice, appellant contends he would never have waived the motion to suppress or accepted the plea. See Cousino v. State, 770 So. 2d 1258 (Fla. 4th DCA 2000) (noting that prejudice prong is satisfied by allegation that, but for counsel's error, there is a reasonable probability that defendant would not have entered plea). The record before this court does not conclusively refute appellant's facially-viable claim. The state therefore properly concedes that the order denying post-conviction relief should be reversed and remanded either for the attachment of portions of the record conclusively refuting this claim or for an evidentiary hearing.
Reversed and Remanded.
STEVENSON, C.J., GUNTHER and MAY, JJ., concur.
Not final until disposition of timely filed motion for rehearing.