IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

JOSEPH FARLEY,                      NOT FINAL UNTIL TIME EXPIRES TO
                                    FILE MOTION FOR REHEARING AND
      Appellant,                    DISPOSITION THEREOF IF FILED

v.                                  CASE NO. 1D16-3491

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed April 4, 2017.

An appeal from the Circuit Court for Duval County.
Russell L. Healey, Judge.

Flem K. Whited, III, and Kayla R. Hathaway, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, and Robert Quentin Humphrey, Assistant
Attorney General, Tallahassee, for Appellee.




PER CURIAM.

      Joseph Farley appeals the summary denial of his motion for postconviction

relief filed under Florida Rule of Criminal Procedure 3.850. We affirm in all
respects except for the summary denial of Ground Six. We reverse and remand for

further proceedings on that ground for the reasons that follow.

      Farley pled guilty to two counts of DUI manslaughter and his judgment and

sentence were affirmed on direct appeal in Farley v. State, 

(Fla. 1st

DCA 2014) (unpublished table opinion). In May 2016, Farley filed a timely rule

3.850 motion containing 16 “grounds” for relief, all of which alleged claims of

ineffective assistance of trial counsel. The postconviction court summarily denied

the motion, finding all of the claims to be legally insufficient and/or refuted by the

record. This timely appeal followed.

      In Ground Six of the motion, Farley alleged that his trial counsel’s

performance was deficient because he told Farley that all of the discovery materials

pertaining to his blood draw had been received and contained nothing beneficial to

the defense when, in fact, several discovery requests were still awaiting a response.

Farley further alleged that but for this deficient performance he would not have

entered a negotiated plea and instead would have insisted on going to trial.

      This claim is facially sufficient, see Mason v. State, 

(Fla. 1st

DCA 1999), and as the State concedes, it is not refuted by the record excerpts

attached to the postconviction court’s order. The motion for discovery attached to

the order refutes any suggestion that trial counsel failed to pursue discovery

pertaining to Farley’s blood draw, but it does not refute the claim alleged in Ground

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Six that counsel’s misrepresentation that all of the discovery responses had been

received and were not beneficial to the defense induced Farley to enter a plea.

         Accordingly, we reverse the summary denial of Ground Six and remand for

the postconviction court to either attach portions of the record refuting the claim of

ineffective assistance of counsel alleged in that ground or to hold an evidentiary

hearing on that ground. In all other respects we affirm the postconviction court’s

order.

         AFFIRMED in part; REVERSED in part; REMANDED with directions.

WETHERELL, MAKAR, and KELSEY, JJ., CONCUR.




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