John Matthew Johnson v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D19-0507 _____________________________

JOHN MATTHEW JOHNSON,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Duval County. Angela M. Cox, Judge.

July 23, 2019

B.L. THOMAS, J. Appellant challenges the summary denial of his rule 3.850 motion for postconviction relief. He asserts two grounds for relief. We affirm the trial court’s summary denial of relief on the second of those two grounds without discussion. However, in Appellant’s first ground he alleged that his counsel was ineffective for advising him to take the plea agreement without informing him of the weakness in the State’s evidence. The asserted weakness in the State’s evidence included that the State allegedly had no witnesses who saw anyone with a firearm, much less saw the Appellant with a firearm, and could not enter the firearm, shell casing, or bullet projectile as evidence under section 90.401, Florida Statutes. Appellant also asserted that had he known of the State’s allegedly weak case, he would have never taken the plea agreement as his counsel recommended.

These assertions, taken as true, establish a facially sufficient claim of deficient performance and prejudice under Strickland v. Washington *. Hill v. State, 258 So. 3d 577, 579 (Fla. 1st DCA 2018); Marshall v. State, 540 So. 2d 921, 922 (Fla. 1st DCA 1989); Golden v. State, 509 So. 2d 1149, 1153-54 (Fla. 1st DCA 1987). We reverse and remand for an evidentiary hearing on this ground. AFFIRMED in part, REVERSED in part, and REMANDED. OSTERHAUS and ROWE, JJ., concur. _____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

John Matthew Johnson, pro se, Appellant.

Ashley Moody, Attorney General, Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.

* 466 U.S. 668, 678 (1984).