Third District Court of Appeal
State of Florida
Opinion filed September 21, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-0971
Lower Tribunal No. F17-10013
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Marvisha McGregor,
Appellant,
vs.
The State of Florida,
Appellee.
An appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from
the Circuit Court for Miami-Dade County, Thomas J. Rebull, Judge.
Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant
Public Defender, for appellant.
Ashley Moody, Attorney General, and Sandra Lipman, Assistant
Attorney General, for appellee.
Before LOGUE, LINDSEY, and MILLER, JJ.
MILLER, J.
Appellant, Marvisha McGregor, challenges the trial court’s summary
denial of her motion for postconviction relief filed pursuant to Florida Rule of
Criminal Procedure 3.850. In her motion, appellant alleged her attorney
failed to apprise her of a possible defense and that had she been aware of
the defense, she would not have entered a plea of guilty. On appeal, she
contends the attachments to the court’s order do not refute her allegations.
We agree. Accordingly, we reverse and remand for the trial court to conduct
an evidentiary hearing. See Jacobson v. State, 171 So. 3d 188, 191 (Fla.
4th DCA 2015) (“A claim of ineffective assistance of counsel for failure to
advise a defendant of a potential defense can state a valid claim if the
defendant was unaware of the defense and can establish that a reasonable
possibility exists that he would not have entered his plea if properly
advised.”); see also Curry v. State, 333 So. 3d 359, 360 (Fla. 3d DCA 2022)
(finding claim of ineffective assistance of counsel raised in motion for
postconviction relief legally sufficient and unrefuted by record evidence,
meriting evidentiary hearing); Prestano v. State, 210 So. 3d 772, 774 (Fla.
5th DCA 2017) (reversing denial of motion for postconviction relief where
trial court relied on record evidence that did not refute allegation of ineffective
counsel).
Reversed and remanded.
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