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
MAX MAGIC GUZMAN-AVILES,
Appellant,
v. Case No. 5D17-250
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed August 25, 2017
3.850 Appeal from the Circuit
Court for Seminole County,
Donna L. McIntosh, Judge.
Max Magic Guzman-Aviles, Quincy, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Rebecca Rock
McGuigan, Assistant Attorney General,
Daytona Beach, for Appellee.
LAMBERT, J.
Max Guzman-Aviles appeals the summary denial of his Florida Rule of Criminal
Procedure 3.850 motion for postconviction relief. We affirm the denial of grounds three,
four, and six of his motion without further comment. As to the remaining grounds one,
two, and five, we also affirm, but not for the reasons provided by the postconviction court.
Guzman-Aviles was charged with robbery with a deadly weapon by being in actual
possession of a firearm, a first-degree felony punishable by life imprisonment,1 and
fleeing or attempting to elude a police officer, a third-degree felony.2 Guzman-Aviles
entered into a negotiated plea agreement and, consistent with this agreement, was
sentenced to a ten-year mandatory minimum prison sentence for the armed robbery,
followed by five years of probation, and to a concurrent five years’ imprisonment for the
fleeing or attempting to elude a police officer.
In his facially sufficient motion for postconviction relief, Guzman-Aviles asserted in
grounds one and five that his counsel was ineffective for failing to file a pretrial motion to
exclude or suppress the firearm from evidence because, according to Guzman-Aviles,
the gun could not be connected to him. Guzman-Aviles specifically alleged that the gun
was not found in his possession at the time of arrest, the police report does not reflect
that the officer who pursued Guzman-Aviles saw him discard the firearm during the chase
leading up to his arrest, the firearm was found in a public area two-and-one-half miles
from where the crime occurred, and the firearm was never shown to the victim to identify
it as the one used in the commission of the crime. In ground two of his motion,
Guzman-Aviles alleged that his counsel was ineffective for failing to file a pretrial motion
to suppress the victim’s identification of Guzman-Aviles at a show-up3 done at the arrest
site because the show-up was impermissibly suggestive. Guzman-Aviles asserted that
1 § 812.13(2)(a), Fla. Stat. (2012).
2 § 316.1935(1), Fla. Stat. (2012).
3The show-up identification procedure differs from a line-up because the witness
is presented with only one possible suspect for identification. See Perez v. State, 648
So. 2d 715, 719 (Fla. 1995).
2
by failing to file a motion to suppress is a legally sufficient claim, which is not waived by
an entry of a plea.’” 217 So. 3d at 1097 (quoting Spencer v. State, 889 So. 2d 868, 870
(Fla. 2d DCA 2004)). Moreover, the plea agreement attached to the order on appeal does
not conclusively refute Guzman-Aviles’ claim that counsel was ineffective for failing to
move to suppress evidence, nor did the trial court’s plea colloquy with Guzman-Aviles
address any specific issues regarding the suppression of evidence. See Zanchez v.
State, 84 So. 3d 466, 468 (Fla. 2d DCA 2012) (holding that a general plea colloquy did
not refute or address the specific issue of an alleged illegal search); Jones v. State, 846
So. 2d 1224, 1226 (Fla. 2d DCA 2003) (stating that a defendant’s confirmation of
satisfaction with counsel during a generalized plea colloquy was insufficient to refute a
postconviction claim based on counsel’s failure to advise of a specific defense). Thus,
we find that Guzman-Aviles’ plea, by itself, did not preclude his ability to timely seek
postconviction relief based upon the ineffective assistance of his counsel. Nevertheless,
for the following reasons, we affirm the denial order under the “tipsy coachman” rule
because the court reached the right conclusion. See Lamb v. State, 212 So. 3d 1108,
1112 (Fla. 5th DCA 2017) (applying the “tipsy coachman” rule in a rule 3.850 summary
proceeding); Foss v. State, 24 So. 3d 1275, 1276–77 (Fla. 5th DCA 2009) (same);
Montero v. State, 996 So. 2d 888, 890 (Fla. 4th DCA 2008) (affirming a postconviction
court’s denial of a rule 3.850 motion for reasons other than those given by the court in its
order of denial).
A defendant seeking postconviction relief based upon the alleged ineffective
assistance of counsel must plead and prove both deficient performance of counsel and
prejudice to the defendant. Grosvenor v. State, 874 So. 2d 1176, 1178 (Fla. 2004) (citing
5
520 So. 2d at 280. Counsel also stated that the defendant confirmed to him that he had
voluntarily confessed to law enforcement after being advised of his rights, that the
defendant wanted to plea to avoid further delay, and that he did not want to proceed to
trial. Id. Under these circumstances, the court found Stano’s claim that counsel was
ineffective for failure to make a proper investigation to be conclusively refuted by the
record and that by insisting on pleading guilty and advising counsel that he had confessed
freely and voluntarily, the defendant rendered any further investigation pointless. Id. at
281. In Henry, the defendant made a generic allegation that “his counsel was ineffective
because he failed to further investigate the case.” 679 So. 2d at 886. However, unlike
the instant case, the defendant in Henry made no claim that his counsel was ineffective
for failing to file a motion to suppress or how the failure to do so affected the voluntariness
of his plea. In contrast, Guzman-Aviles essentially alleged that the evidence necessary
for filing a motion to suppress evidence was known to his counsel but that his counsel
mistakenly advised him that no motion to suppress could be filed, which Guzman-Aviles
claimed to prejudicially rely upon in entering his plea.
“A trial attorney’s failure to investigate a factual defense or a defense relying on
the suppression of evidence, which results in the entry of an ill-advised plea of guilty, has
long been held to constitute a facially sufficient attack upon the conviction.” MacKinnon
v. State, 39 So. 3d 537, 538 (Fla. 5th DCA 2010) (quoting Williams v. State, 717 So. 2d
1066 (Fla. 2d DCA 1998)). In Hampton v. State, 217 So. 3d 1096 (Fla. 5th DCA 2017),
this court recently held that a postconviction court erred in determining that a defendant’s
no-contest plea precluded a postconviction attack on the admissibility of evidence
because “a rule 3.850 motion alleging that ‘trial counsel provided ineffective assistance
4
by failing to file a motion to suppress is a legally sufficient claim, which is not waived by
an entry of a plea.’” 217 So. 3d at 1097 (quoting Spencer v. State, 889 So. 2d 868, 870
(Fla. 2d DCA 2004)). Moreover, the plea agreement attached to the order on appeal does
not conclusively refute Guzman-Aviles’ claim that counsel was ineffective for failing to
move to suppress evidence, nor did the trial court’s plea colloquy with Guzman-Aviles
address any specific issues regarding the suppression of evidence. See Zanchez v.
State, 84 So. 3d 466, 468 (Fla. 2d DCA 2012) (holding that a general plea colloquy did
not refute or address the specific issue of an alleged illegal search); Jones v. State, 846
So. 2d 1224, 1226 (Fla. 2d DCA 2003) (stating that a defendant’s confirmation of
satisfaction with counsel during a generalized plea colloquy was insufficient to refute a
postconviction claim based on counsel’s failure to advise of a specific defense). Thus,
we find that Guzman-Aviles’ plea, by itself, did not preclude his ability to timely seek
postconviction relief based upon the ineffective assistance of his counsel. Nevertheless,
for the following reasons, we affirm the denial order under the “tipsy coachman” rule
because the court reached the right conclusion. See Lamb v. State, 212 So. 3d 1108,
1112 (Fla. 5th DCA 2017) (applying the “tipsy coachman” rule in a rule 3.850 summary
proceeding); Foss v. State, 24 So. 3d 1275, 1276–77 (Fla. 5th DCA 2009) (same);
Montero v. State, 996 So. 2d 888, 890 (Fla. 4th DCA 2008) (affirming a postconviction
court’s denial of a rule 3.850 motion for reasons other than those given by the court in its
order of denial).
A defendant seeking postconviction relief based upon the alleged ineffective
assistance of counsel must plead and prove both deficient performance of counsel and
prejudice to the defendant. Grosvenor v. State, 874 So. 2d 1176, 1178 (Fla. 2004) (citing
5
Strickland v. Washington, 466 U.S. 668 (1984)). There is a similar two-prong test for
ineffective assistance of counsel claims relating to cases resolved by a guilty or
no-contest plea. Hill v. Lockhart, 474 U.S. 52, 57–59 (1985). The first prong is the same
as in Strickland, while the second “prejudice” prong requires that a defendant
demonstrate “a reasonable probability that, but for counsel’s errors, the defendant would
not have pleaded guilty and would have insisted on going to trial.” Grosvenor, 874 So.
2d at 1179 (quoting Hill, 474 U.S. at 59). This second prong focuses the court’s analysis
on “whether counsel’s constitutionally ineffective performance affected the outcome of
the plea process.” Hill, 474 U.S. at 59.
As previously discussed, Guzman-Aviles alleged that he asked his counsel to
move to suppress the firearm and the out-of-court identification but that his counsel
misadvised him that he could not file these motions and that the evidence would be
admissible at trial. Guzman-Aviles claims that, but for his counsel’s misadvice and
deficient performance in not pursuing these motions to suppress this evidence, he would
not have pleaded no contest and would have insisted on proceeding to trial.
Nevertheless, a defendant’s assertion of insisting on going to trial, standing alone, does
not entitle a defendant to postconviction relief. Miller v. Champion, 262 F.3d 1066, 1072
(10th Cir. 2001) (citing United States v. Gordon, 4 F.3d 1567, 1571 (10th Cir. 1993)).
Rather, the court evaluates such a claim from an objective standpoint, by applying the
totality of the circumstances test as explained in Grosvenor:
[I]n determining whether a reasonable probability exists that
the defendant would have insisted on going to trial, a court
should consider the totality of the circumstances surrounding
the plea, including such factors as whether a particular
defense was likely to succeed at trial, the colloquy between
the defendant and the trial court at the time of the plea, and
6
the difference between the sentence imposed under the plea
and the maximum possible sentence the defendant faced at a
trial.
874 So. 2d at 1181–82.
Under this test, a defendant seeking postconviction relief following a plea, based
upon the ineffective assistance of counsel in not pursuing or misadvising about a defense,
is not required to allege and prove that he or she would have prevailed at trial on the
defense. Id. at 1180. However, the viability of the defense and the strength of the State’s
case are both relevant to analyzing the credibility of a defendant’s assertion in a rule 3.850
motion that the defendant would have insisted on going to trial. Id. at 1180–81. To that
end, for a successful ineffective assistance claim based on counsel’s failure to file a
motion to suppress, a movant must demonstrate that there is a reasonable probability
that the motion would have been granted. Cf. Robinson v. State, 972 So. 2d 1115, 1116
(Fla. 5th DCA 2008) (finding that a probable cause affidavit claiming that the defendant
consented to a search did not conclusively refute the defendant’s claim that a motion to
suppress would likely have been granted, had his attorney filed one, because the trial
court would have been required to make a credibility determination in deciding the
motion). Applying the totality of the circumstances test to the present record, we conclude
that there is no reasonable probability that Guzman-Aviles would have insisted on going
to trial. Stated differently, “[w]here, under the totality of the circumstances, no objectively
reasonable probability of prejudice exists, the claim may be summarily denied.” Capalbo
v. State, 73 So. 3d 838, 841 (Fla. 4th DCA 2011).
The detailed factual basis provided by the prosecutor at the change of plea
hearing, based on the evidence that the State was prepared to present at trial, was that
7
Guzman-Aviles had answered a Craigslist ad to purchase a cellular phone and thereafter
arranged to meet the seller at a local restaurant to consummate the transaction. The two
met in the parking lot, and after negotiations apparently broke down, Guzman-Aviles
pointed a .25 caliber semi-automatic handgun at the victim’s face, who then handed over
the phone. Guzman-Aviles then fled in his car. The police were immediately notified,
and within moments, they had Guzman-Aviles’ car in front of them. The police initiated
their police lights and siren, but Guzman-Aviles did not stop his vehicle. Instead, he
turned off his own headlights and led them on a high-speed chase. Then, according to
Guzman-Aviles’ own sworn motion, he stopped his car, jumped out and started running,
ignoring the officer’s loud verbal command to stop. The officer employed his taser, which
hit Guzman-Aviles and caused him to drop to the pavement, where he was arrested. A
separate officer, who was not involved in the chase, promptly brought the victim to the
arrest site, and the victim identified Guzman-Aviles as the individual who had just robbed
him at gunpoint. Two of the officers then walked back over the two-and-one-half-mile
chase route and located the .25 caliber handgun near a sewer.
Guzman-Aviles argued below and asserts here that because he was not in
possession of the firearm when arrested and the officer who chased him did not list in his
police report that he saw Guzman-Aviles discard the gun during the chase, the gun
recovered along the chase route would have been suppressed. Assuming the
truthfulness of Guzman-Aviles’ factual allegations, as is required when reviewing the
summary denial of a rule 3.850 motion to the extent they are not refuted by the record,
See Peede v. State, 748 So. 2d 253, 257 (Fla. 1999), and even assuming that Guzman-
Aviles’ legal conclusion that the gun would have been suppressed is correct, this does
8
not preclude the state from prosecuting Guzman-Aviles as charged. “Eyewitness
testimony that the defendant possessed a firearm is sufficient evidence . . . that the
defendant was in possession of a firearm.” Akins v. State, 838 So. 2d 637, 639 (Fla. 5th
DCA 2003) (citing Fletcher v. State, 472 So. 2d 537 (Fla. 5th DCA 1985); Crump v. State,
629 So. 2d 231 (Fla. 5th DCA 1993)). Further, “[i]t is not fatal to the prosecution if the
state does not introduce the weapon into evidence.” Id. (citing Fletcher, 472 So. 2d at
539).
As to the suppression of the victim’s identification of Guzman-Aviles resulting from
the show-up procedure used, the identification of a suspect through the show-up process
is not invalid unless the police aggravate the suggestiveness of the confrontation or the
procedure gives rise to a substantial likelihood of irreparable misidentification given the
totality of the circumstances. See Blanco v. State, 452 So. 2d 520, 524 (Fla. 1984),
receded from on other grounds by Puglisi v. State, 112 So. 3d 1196 (Fla. 2013); State v.
Jackson, 744 So. 2d 545, 548 (Fla. 5th DCA 1999). The factors to be considered in
evaluating the likelihood of misidentification include: (1) “the opportunity of the witness
to view the criminal at the time of the crime”; (2) “the witness’ degree of attention”; (3) “the
accuracy of the witness’ prior description of the criminal”; (4) “the level of certainty
demonstrated by the witness at confrontation”; and (5) “the length of time between the
crime and the confrontation.” Perez v. State, 648 So. 2d 715, 719 (Fla. 1995) (quoting
Neil v. Biggers, 409 U.S. 188, 199 (1972)).
Based on the sworn allegations in Guzman-Aviles’ motion, the crime occurred at
night, with the victim standing next to the suspect’s driver-side door when the suspect
pointed the gun directly at the victim’s head, causing him to turn over the cell phone.
9
Thus, the victim’s opportunity to view the criminal and his degree of attention is apparent.
See Jackson, 744 So. 2d at 548 (“[I]t is fair to say that [the victim] would have paid close
attention to the robber who had a gun to [the victim’s] head when he demanded the
wallet.”).4 Furthermore, the length of time between the robbery and the show-up was
brief. See id. (“Consideration must also be given to the fact that ‘an identification made
shortly after the crime is more reliable than a later identification in court.’” (quoting Blanco,
452 So. 2d at 524)). Additionally, although Guzman-Aviles was in handcuffs when
identified, “keeping a suspect in handcuffs is insufficient, without more, to invalidate a
show-up.” Jenkins v. State, 96 So. 3d 1110, 1113 (Fla. 1st DCA 2012) (citing Jackson,
744 So. 2d at 548).
Guzman-Aviles’ ten-year prison sentence is the lowest possible sentence that he
could have received if convicted as charged, and his plea avoided a potential life
sentence. Guzman-Aviles also raised no challenge to the evidence supporting his
conviction for fleeing or attempting to elude a police officer that, by itself, exposed him to
a five-year prison sentence. We also find sufficient the plea colloquy between
Guzman-Aviles and the trial court, in which Guzman-Aviles was specifically advised of
the maximum sentences that he faced if convicted as charged and the court scrupulously
reviewed with Guzman-Aviles the constitutional rights that he had and waived by
tendering his plea. Finally, for the reasons just outlined, the likelihood that the gun or the
victim’s out-of-court identification of Guzman-Aviles would be suppressed was, at best,
questionable. Accordingly, we conclude that Guzman-Aviles’ motion for postconviction
4Guzman-Aviles does not suggest or assert that the suspect was wearing a mask
or was covering his face.
10
relief was appropriately denied. In doing so, we are reminded of the following observation
made thirty-eight years ago by the United States Supreme Court regarding the limitation
on collateral attack with respect to convictions based on guilty pleas:
Every inroad on the concept of finality undermines confidence
in the integrity of our procedures; and, by increasing the
volume of judicial work, inevitably delays and impairs the
orderly administration of justice. The impact is greatest when
new grounds for setting aside guilty pleas are approved
because the vast majority of criminal convictions result from
such pleas. Moreover, the concern that unfair procedures may
have resulted in the conviction of an innocent defendant is
only rarely raised by a petition to set aside a guilty plea.
United States v. Timmreck, 441 U.S. 780, 784 (1979) (quoting United States v. Smith,
440 F.2d 521, 528–29 (7th Cir. 1971) (Stevens, J., dissenting)).
AFFIRMED.
PALMER and EVANDER, JJ., concur.
11