DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DEIDREA RENAYE GRAHAM,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-45
[May 23, 2018]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; Samantha Schosberg
Feuer, Judge; L.T. Case No. 50-2012-CF-010107-AXXX-MB.
Deidrea Renaye Graham, Florida City, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and Marc B.
Hernandez, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Appellant challenges the circuit court’s summary denial of her
postconviction motion filed pursuant to Florida Rule of Criminal
Procedural 3.850. We reverse and remand.
She was charged with twelve counts of attempt to obtain a controlled
substance by fraud, twelve counts of conspiracy to traffic in oxycodone,
and twelve counts of practice of medicine without a license. She entered
into a negotiated plea to one count of practicing medicine without a
license, one count of the conspiracy, and to the twelve counts of attempt
to obtain the controlled substance by fraud.
Appellant’s motion raised double jeopardy claims and argued that
trial counsel was ineffective for failing to move to dismiss several of the
charged offenses on that basis before she entered the plea. The trial
court neither obtained a response from the state nor attached documents
to refute the claims. Rather, relying on Novaton v. State,
634 So. 2d 607,
609 (Fla. 1994), it determined that the claims failed as a matter of law
because appellant had entered into a negotiated plea.
We disagree. Novaton does not preclude a claim of ineffective
assistance of counsel for failure to advise there were potential double
jeopardy issues. Wilkerson v. State,
128 So. 3d 189 (Fla. 5th DCA 2013);
Rogers v. State,
113 So. 3d 960, 961 (Fla. 2d DCA 2013); Tapp v. State,
44 So. 3d 666, 667 (Fla. 2d DCA 2010).
This court cannot review the merits of the ineffectiveness claim
without record attachments. See Pascoe v. State,
225 So. 3d 344 (Fla.
4th DCA 2017); Phillips v. State,
229 So. 3d 426, 428 (Fla. 2d DCA 2017)
(citing Peede v. State,
748 So. 2d 253, 257 (Fla. 1999) (“To uphold the
trial court's summary denial of claims raised in a 3.850 motion, the
claims must be either facially invalid or conclusively refuted by the
record.”).
We also recognize a pleading defect within appellant’s motion in that
she failed to allege clearly that she would not have pleaded if advised
accordingly. We therefore reverse and remand to allow appellant the
opportunity to amend her allegations before the trial court addresses the
claims. See Rosado v. State,
22 So. 3d 772 (Fla. 4th DCA 2009) (holding
that defendant was entitled to an opportunity to amend the motion to
expressly allege that, but for the alleged errors, he would not have
entered plea).
Reversed and remanded.
WARNER, TAYLOR and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2
