SMITH v. STATE (2002)

District Court of Appeal of Florida,First District.

Derrick SMITH, Appellant, v. STATE of Florida, Appellee.

No. 1D01-1712.

Decided: April 22, 2002

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.

ALLEN, C.J.

MINER and DAVIS, JJ., concur.

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