IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JABARI MARKEITH HIRD,
Appellant,
v. Case No. 5D15-4408
STATE OF FLORIDA,
Appellee.
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Opinion filed July 15, 2016
3.850 Appeal from the Circuit
Court for Orange County,
Keith A. Carsten, Judge.
Jabari Markeith Hird, Butner, NC, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Marjorie Vincent-Tripp,
Assistant Attorney General, Daytona
Beach, for Appellee.
EDWARDS, J.
Appellant, Jabari Hird, appeals the postconviction court’s summary denial of his
Florida Rule of Criminal Procedure 3.850 motion. Appellant’s amended motion asserted,
in four separate grounds, that he was prejudiced by the ineffective assistance of his
counsel in connection with the entry of a nolo contendere plea. We affirm the lower court’s
summary denial of grounds two, three, and four. We find, and the State concedes, that
the lower court erred in summarily denying ground one of Appellant’s motion. We reverse
that portion of the order and remand for the postconviction court to either attach records
that conclusively refute Appellant’s claim or, if such records are not available, to conduct
an evidentiary hearing.
“The standard of review of a summary denial of a rule 3.850 motion is de novo.”
Lebron v. State, 100 So. 3d 132, 133 (Fla. 5th DCA 2012) (citing McLin v. State, 827 So.
2d 948, 954 (Fla. 2002)). To uphold the summary denial, “the claims must be either
facially invalid or conclusively refuted by the record.” Peede v. State, 748 So. 2d 253, 257
(Fla. 1999) (citing Fla. R. Crim. P. 3.850(d)); see also Freeman v. State, 761 So. 2d 1055,
1061 (Fla. 2000) (“[A] defendant is entitled to an evidentiary hearing on a postconviction
relief motion unless (1) the motion, files, and records in the case conclusively show that
the [defendant] is entitled to no relief, or (2) the motion or a particular claim is legally
insufficient.” (citations omitted)). “[W]here no evidentiary hearing is held below, we must
accept the defendant’s factual allegations to the extent they are not refuted by the record.”
Peede, 748 So. 2d at 257 (citing Lightbourne v. Dugger, 549 So. 2d 1364, 1365 (Fla.
1989)).
In ground one of his amended motion, Appellant alleged that his trial attorney
allowed Appellant to enter a plea despite knowing that he was under the influence of
antipsychotic medication. Appellant asserted that he informed defense counsel and
provided medical documents that confirmed that the medications were negatively
affecting him to the extent that he did not understand what was occurring. Appellant also
alleged that he was hearing voices and hallucinating at his plea hearing and could not
stand without assistance. Further, in an affidavit, Appellant’s brother stated that he spoke
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with defense counsel about Appellant’s mental health issues and use of antipsychotic
medication. Appellant’s motion essentially claimed that counsel misadvised him to enter
a plea while he was substantively incompetent and that but for the ineffective assistance
of counsel, he would have insisted on a trial instead of pleading nolo contendere. See
Thompson v. State, 88 So. 3d 312, 316 (Fla. 4th DCA 2012).
Ground one of Appellant’s amended motion set forth a facially sufficient claim. See
Jackson v. State, 29 So. 3d 1161, 1162 (Fla. 1st DCA 2010) (concluding defendant’s
claim was facially sufficient where the defendant “allege[d] that he was incompetent and
did not understand the consequences of his plea, that he had a history of mental illness,
had not taken his schizophrenia medication, was suffering from delusions and hearing
voices at the time of the plea and that he informed counsel of his condition”).
Further, the record does not conclusively refute Appellant’s claim. In Saunders v.
State, 148 So. 3d 843 (Fla. 5th DCA 2014), “the defendant asserted that his trial counsel
was ineffective for permitting him to enter an involuntary plea due to his mental illness
and use of medication.” 148 So. 3d at 844. This Court reversed the summary denial
because “the record [did] not include a transcript of the plea hearing from which [the] court
[could] determine whether the defendant voluntarily entered his plea” or “whether the
defendant was taking medications at the time of his plea, and whether those medications
interfered with his ability to enter his plea knowingly, intelligently, and voluntarily.” Id.
Similarly, here, the lower court did not attach transcripts of the plea or sentencing
hearings or the waiver of rights form, which might have established whether the issue of
Appellant’s medications, mental health, and competency to enter his plea were ever
addressed. We reverse that part of the order that summarily denied the claim for relief
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set forth as ground one, and remand for the postconviction court to either attach records
which conclusively refute that claim, or if such records are not available, to conduct an
evidentiary hearing. See Burgos v. State, 181 So. 3d 572 (Fla. 5th DCA 2015).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH
INSTRUCTIONS.
SAWAYA and EVANDER, JJ., concur.
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