Bush v. State
Bush v. State
Opinion of the Court
Appellant Larry Bush appeals the trial court’s summary denial of his rule 3.850 motion. Bush argues the trial court erred in summarily denying his rule 3.850 motion as he entered his guilty plea based on erroneous advice of counsel. We reverse and remand for further proceedings.
“To establish a claim that defense counsel was ineffective, a defendant must establish deficient performance and prejudice, as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Zakrzewski v. State, 866 So.2d 688, 692 (Fla. 2003).
As to the first prong, deficient performance, a defendant must establish conduct on the part of counsel that is outside the broad range of competent performance under prevailing professional standards. Second, as to the prejudice prong, the deficient performance must be shown to have so affected the fairness and reliability of the proceedings that confidence in the outcome is undermined.
Id. (internal citations omitted).
“A trial attorney’s failure to investigate a factual defense or a defense relying on the suppression of evidence, which results in the entry of an ill-advised plea of guilty, has long been held to constitute a facially sufficient attack upon the conviction.” Williams v. State, 717 So.2d 1066, 1067 (Fla. 2d DCA 1998). “However, in order to establish the prejudice prong of Strickland the defendant ‘must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” Zakrzewski, 866 So.2d at 694 (quoting Hill v. Lockhart, 474 U.S. 52, 57, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).
In this case, Bush argues he would not have entered a plea of no contest had defense counsel told him he could file a successful motion for suppression of his statements to the police rather than telling him no defense would be successful at trial. Bush alleges he asked to speak with an attorney and his mother
Further, as no evidentiary hearing was held below, this court must accept as true the factual allegations “to the extent they are not refuted by the record.” McLin v. State, 827 So.2d 948, 954 (Fla. 2002) (citing Foster v. State, 810 So.2d 910, 914 (Fla.), cert. denied, 537 U.S. 990, 123 S.Ct. 470, 154 L.Ed.2d 359 (2002) (citations omitted)). This includes Bush’s assertion that had counsel advised him of a possibly successful motion to suppress, he would not have entered a plea, but would have gone to trial instead. This satisfies the prejudice prong of Strickland.
We reverse and remand the trial court summary denial of Bush’s rule 3.850 claim for either an evidentiary hearing, or attachment of those portions of the record which conclusively refute his claims.
. Bush was a juvenile at the time of these offenses.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.