NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JORGE HANANIA, DOC# 366702, ) ) Appellant, ) ) v. ) Case No. 2D17-4044 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________)
Opinion filed February 1, 2019.
Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County; J. Kevin Abdoney, Judge.
Jorge Hanania, pro se.
SALARIO, Judge.
Jorge Hanania appeals from a final order summarily denying his motion
for postconviction relief under Florida Rule of Criminal Procedure 3.850. Having
reviewed his motion and our limited postconviction record, we conclude that Mr.
Hanania has presented three claims of ineffective assistance of counsel related to a
search of his motel room that are not refuted by the record and that are either legally
sufficient or might be amended to make them so and a fourth legally sufficient claim of cumulative error. The postconviction court erred by summarily denying those claims.
We reverse the order to that extent and affirm the balance without comment.
In October 2012, Mr. Hanania pleaded no contest to one count each of
possession of methamphetamine, possession of alprazolam, possession of cannabis,
and possession of paraphernalia. The trial court sentenced Mr. Hanania to a total of
eleven years—five years on the methamphetamine charge to run consecutively to five
years on the alprazolam charge and concurrent terms of twelve months each on the
cannabis and paraphernalia charges, which the trial court ran consecutively to the
sentences for possession of alprazolam and possession of methamphetamine. The trial
court suspended the sentences and required Mr. Hanania to complete eleven years of
probation.
Two weeks later, Mr. Hanania was arrested and charged with possession
of methamphetamine and possession of paraphernalia. The arrest followed the search
of a motel room in which Mr. Hanania, a friend named Oscar, and Mr. Hanania's
girlfriend, Krystal Leighton, were present. Mr. Hanania's motion tells the story as
follows: Polk County Sheriff's Deputy William Roberts was driving behind Ms. Leighton
as she was parking a car at the motel. Ms. Leighton backed out of her parking spot to
straighten the car out and almost hit Deputy Roberts' patrol car. Deputy Roberts got out
of his car and began questioning Ms. Leighton. She told the deputy that the car
belonged to Mr. Hanania, who was upstairs in their motel room. Deputy Roberts told
Ms. Leighton that his computer showed that the car belonged to Mr. Hanania's mother
-2- and asked to speak with him. Ms. Leighton remained in the parking lot with another
deputy, who had since arrived, while Deputy Roberts went upstairs.
Deputy Roberts met Mr. Hanania at the door of his motel room. Mr.
Hanania said that the car was his mother's and that he let Ms. Leighton drive it. Deputy
Roberts asked whether he was on probation, and Mr. Hanania replied that he "was just
put on probation for meth." The deputy asked if he could search Mr. Hanania and
Oscar. Both consented. The second deputy arrived with Ms. Leighton—who evidently
also consented to be searched—and all three were searched outside the room.
The searches turned up bubkes, and Deputy Roberts let Mr. Hanania, Ms.
Leighton, and Oscar return to the motel room. As they walked into the room, Deputy
Roberts stopped the door from closing and followed them in, over Mr. Hanania's
objection, asserting that he had a right to search Mr. Hanania's room because he was
on probation. Undeterred by Mr. Hanania's continuing protests over his entry into the
room, Deputy Roberts searched the room and found a pipe and a scale between the
bed sheets, which Mr. Hanania denied were his. The pipe tested positive for
methamphetamine. Mr. Hanania was then arrested on new possession charges, which
prompted the State to file a notice of violation of probation related to the eleven-year
sentence Mr. Hanania had just received on the old possession charges.
At an evidentiary hearing on the probation violations, Deputy Roberts
testified that after Mr. Hanania was arrested, he admitted buying the pipe, using the
pipe to smoke methamphetamine, and using the scale to weigh methamphetamine. In
his rule 3.850 motion, Mr. Hanania denies anything of the kind. Our limited record does
-3- not contain any information apart from Deputy Roberts' testimony at the probation
violation hearing.
At that hearing, Deputy Roberts also testified that before searching the
motel room, he did not have any reason to think that there were drugs in the room.
Deputy Roberts stated several times that he asked for consent to search the motel
room, but he never said whether the consent he sought was given or withheld. The trial
court found that Mr. Hanania's statements to Deputy Roberts established that he willfully
violated his probation by possessing drug paraphernalia, revoked probation, and
reimposed the previously suspended sentences. This court affirmed. See Hanania v.
State, 138 So. 3d 1031 (Fla. 2d DCA 2014) (table decision).
Mr. Hanania then filed his rule 3.850 motion, which he later amended and
supplemented. The postconviction court struck these filings because Mr. Hanania had
not complied with the English-literacy certification requirement of rule 3.850(n)(2). At
the postconviction court's direction, Mr. Hanania refiled a single rule 3.850 motion curing
that deficiency. The motion raised five claims of ineffective assistance of counsel and
one claim of cumulative error, all of which were related in one way or another to his
contention that the evidence against him was the product of an illegal search in violation
of the Fourth Amendment. The postconviction court summarily denied claim five and
ordered the State to respond to the other claims. The State responded that claim one
should be denied, that claims two and three should be dismissed with leave to amend,
and that claim four required an evidentiary hearing.
-4- Notwithstanding the State's response that Mr. Hanania should get leave to
amend two claims and that an evidentiary hearing was required on a third, the
postconviction court entered a final order summarily denying Mr. Hanania's motion in its
entirety. Contrary to what the State said in its response, the postconviction court wrote
that "the State argues that the Defendant's claims should be denied. The Court
agrees." It reasoned that all of Mr. Hanania's claims boiled down to whether to believe
Mr. Hanania's story concerning whether he consented to the search of the motel room
or whether, instead, to believe the deputy's. The court concluded as follows: "Given the
Defendant's past record and interest in the outcome of the case, the Court finds that it is
not probable that a motion to suppress would have been granted or that the result of the
Defendant's [probation violation] hearing would have been different."1 It attached to its
order the transcript of Deputy Roberts' testimony at Mr. Hanania's probation violation
hearing. This is Mr. Hanania's timely appeal.
We review the summary denial of a motion for postconviction relief de
novo. Martin v. State, 205 So. 3d 811, 812 (Fla. 2d DCA 2016). Our task is "to
determine whether the claims are legally sufficient and whether they are conclusively
refuted by the record." Watson v. State, 34 So. 3d 806, 808 (Fla. 2d DCA 2010)
1Witness credibility is not regarded as an appropriate basis for the summary denial of a postconviction motion. See Coley v. State, 74 So. 3d 184, 185 (Fla. 2d DCA 2011) ("[C]redibility may be called into question based on conflict with testimony adduced at trial[;] such conflict is necessarily an evidentiary matter that must be weighed after a hearing and is not proper grounds for denial at the summary stage of the proceeding."). Mr. Hanania has not raised that aspect of the postconviction court's order here, however, and so we do not address it further or reverse on that basis. See I.R.C. v. State, 968 So. 2d 583, 588 (Fla. 2d DCA 2007).
-5- (quoting Griggs v. State, 995 So. 2d 994, 995 (Fla. 1st DCA 2008)). "When a
postconviction court summarily denies a defendant's motion without an evidentiary
hearing, an appellate court 'must accept a defendant's factual allegations as true to the
extent they are not refuted by the record.' " Balmori v. State, 985 So. 2d 646, 649 (Fla.
2d DCA 2008) (quoting Floyd v. State, 808 So. 2d 175, 182 (Fla. 2002)). To sufficiently
plead a claim of ineffective assistance of counsel, the defendant must sufficiently allege
facts showing (1) that counsel's performance was deficient and (2) that counsel's
deficient performance prejudiced the defendant. See Strickland v. Washington, 466
U.S. 668, 687 (1984).
In claim two of his postconviction motion, Mr. Hanania asserted in a
generalized fashion that his counsel should have "challenged" the search of his motel
room during his probation violation proceedings. However, as the State pointed out in
its response, Mr. Hanania did not make any allegations regarding exactly what counsel
should have done or how counsel should have done it. Based on some of the cases his
motion cites, Mr. Hanania probably meant that counsel should have filed a motion to
suppress or otherwise tried to exclude the evidence resulting from that search on the
theory that Deputy Roberts lacked the authority to conduct a warrantless,
nonconsensual search of his hotel room—which, as we discuss below, is also the focus
of claim four. But as presented in claim two, this claim was merely conclusory and thus
facially insufficient. See Knight v. State, 923 So. 2d 387, 399 (Fla. 2005) (noting that
the defendant's claim that counsel was ineffective for not challenging the State's experts
was conclusory and insufficient when the defendant did not allege what particular
-6- challenge counsel should have made); Kennedy v. State, 547 So. 2d 912, 913 (Fla.
1989) (stating that a defendant seeking postconviction relief "must allege specific facts
that, when considering the totality of the circumstances, are not conclusively rebutted by
the record and that demonstrate a deficiency on the part of counsel which is detrimental
to the defendant"). Instead of summarily denying it, the postconviction court should
have given Mr. Hanania an opportunity to amend this claim. See Fla. R. Crim. P.
3.850(f)(2). To the extent he can allege a legally sufficient claim based on counsel's
failure to "challenge" the search that is independent of claim four, he is entitled to an
opportunity to plead it. See Spera v. State, 971 So. 2d 754, 761 (Fla. 2007).
Because claim four is closely related to claim two, we discuss that claim
next. In claim four, Mr. Hanania specifically alleged that counsel should have filed a
motion to suppress the evidence obtained as a result of the search of the motel room.
He asserted that the search was warrantless, that his status as a probationer did not
authorize a warrantless search, and that he did not give consent to the search. Absent
a justification to be found in Mr. Hanania's status as a probationer or his consent, of
course, Deputy Roberts' search of the motel room would have required a showing of
exigent circumstances. See Holloman v. State, 959 So. 2d 403, 406 (Fla. 2d DCA
2007); see also Lambert v. State, 811 So. 2d 805, 807 (Fla. 2d DCA 2002) (discussing
ineffective assistance in the context of a violation hearing for failing to seek suppression
of evidence of a new law violation that was later shown to be subject to suppression in
the proceeding related to the new charges and citing State v. Scarlet, 800 So. 2d 220,
222 (Fla. 2001), to conclude that the exclusionary rule does apply to probation
-7- revocation proceedings). The postconviction court summarily denied claim four,
reasoning only that it would not have believed Mr. Hanania's testimony over Deputy
Roberts' on the question of consent and that a motion to suppress would, for that
reason, not have been granted. But Deputy Roberts' testimony was, at the very best,
ambiguous on the matter of consent. A motion to suppress may very well have been
meritorious.
Deputy Roberts acknowledged in his testimony at the probation violation
hearing that he did not have any basis to think that Mr. Hanania had anything illegal in
his possession when he began searching the motel room, all but admitting that he
lacked even reasonable suspicion for a search without Mr. Hanania's consent. See
United States v. Knights, 534 U.S. 112, 121 (2001) (discussing whether a law
enforcement officer, as opposed to a probation supervisor, would have needed only
reasonable suspicion to conduct a search). And to the extent he searched the room
based solely on the fact that Mr. Hanania was on probation, as Mr. Hanania contends,
that presents a facially sufficient assertion that Mr. Hanania's counsel should have
sought to suppress the fruits of the search as contrary to law. Although a probation
supervisor may conduct a warrantless and suspicionless search of a probationer's
person or residence, law enforcement officers who are not probation supervisors—like
Deputy Roberts—do not enjoy the same freedom of action. Grubbs v. State, 373 So. 2d
905, 909 (Fla. 1979) ("The search of a probationer's person or residence by a probation
supervisor without a warrant is, in our view, a reasonable search and absolutely
necessary for the proper supervision of probationers. However, granting such general
-8- authority to law enforcement officials is not permissible under the search and seizure
provisions of the Florida or United States Constitutions.");2 see also Gnann v. State, 662
So. 2d 406, 407 (Fla. 2d DCA 1995) ("A motel room is considered a private dwelling [in
which a person may claim Fourth Amendment protections] if the occupant is there
legally, has paid or arranged to pay, and has not been asked to leave."). It is certainly
possible that the terms of Mr. Hanania's probation required him to submit to warrantless
searches by law enforcement officers, but we cannot tell that from our record. If such a
term exists, the postconviction court's order summarily denying Mr. Hanania's motion
did not include it as an attachment. See Fla. R. Crim. P. 3.850(f)(4), (5).
Thus, the facts provided by this record do not conclusively refute Mr.
Hanania's allegations that his status as a probationer did not authorize Deputy Roberts'
search of his motel room. If that allegation is true, the search would have comported
otherwise with the Fourth Amendment only if an exception to the warrant requirement
applied. And the only other exception that could have applied here would have been
consent. See Gnann, 662 So. 2d at 408 ("The five basic exceptions are: (1) consent,
(2) incident to a lawful arrest, (3) with probable cause to search but with exigent
circumstances, (4) in hot pursuit, and (5) stop and frisk." (citing Engle v. State, 391 So.
2d 245 (Fla. 5th DCA 1980))).
2We have recognized that Grubbs was superseded in part by the United States Supreme Court's ruling in Knights. See Bamberg v. State, 953 So. 2d 649, 654 (Fla. 2d DCA 2007). However, "[i]f law enforcement officers lack a reasonable suspicion to search," which Deputy Roberts admitted was the case here, "then Knights is inapplicable." Id. at 654 n.4.
-9- The postconviction court stated that Deputy Roberts testified that Mr.
Hanania consented to the search. From there, its order appears to have concluded that
the record conclusively refutes Mr. Hanania's allegation that he did not consent to the
search. The postconviction court did not, however, accurately describe Deputy Roberts'
testimony. To be sure, the deputy testified—three times, in fact—that he asked for
consent to search the motel room. But he never testified that Mr. Hanania or anyone
else actually gave him the consent he sought. There is nothing else in our record, like a
police report or testimony from another witness, which would establish that Deputy
Roberts had valid consent to search the motel room. And to the extent that Deputy
Roberts searched the motel room based on his belief that Mr. Hanania's status as a
probationer gave him the right to do so, as Mr. Hanania alleges, that would suggest that
he did not search the room because he believed he had consent to do so. As a result,
Mr. Hanania's allegation that he did not give consent to the search of his room is not
conclusively refuted by the record.
We are aware, of course, that it was Mr. Hanania's postarrest statements
to Deputy Roberts, and not the pipe and scale discovered during the search of the motel
room, that were used to establish his possession of paraphernalia and that served as
the basis for the revocation of his probation. We are further aware that "[a]
probationer's admissions against interest may, as a matter of law, be sufficient to revoke
his probation" even where, as is arguably the case here, there is no independent
evidence of the corpus delicti of the crime. State ex rel. Russell v. McGlothin, 427 So.
2d 280, 282 (Fla. 2d DCA 1983). To determine whether Mr. Hanania sufficiently alleged
- 10 - deficient performance and prejudice in a way that is not conclusively refuted by the
record, then, we need to consider whether Mr. Hanania's statements could have been
suppressed along with the physical evidence from the motel room.
Oral statements made after an unlawful search or arrest can be
suppressed in the same manner as tangible evidence obtained during an unlawful
search or arrest where those statements are properly considered fruits of the unlawful
search. Wong Sun v. United States, 371 U.S. 471, 485–86 (1963); see also Talley v.
State, 581 So. 2d 635, 636 (Fla. 2d DCA 1991). Determining whether such statements
are admissible requires consideration of three factors: "The temporal proximity of the
arrest and the confession, the presence of intervening circumstances, and, particularly,
the purpose and flagrancy of the official misconduct . . . ." Brown v. Illinois, 422 U.S.
590, 603–04 (1975) (citation omitted) (footnotes omitted); see also State v. Frierson,
926 So. 2d 1139, 1143 (Fla. 2006). The burden of proving that the statements are
admissible, of course, rests with the State. Brown, 422 U.S. at 604.
Here, our limited postconviction record tells us next to nothing about the
facts relevant to whether Mr. Hanania's postarrest statements were required to be
suppressed. We know that Deputy Roberts testified that he spoke with Mr. Hanania
outside of the motel room immediately after the search and also later at a sheriff's office
substation. His testimony did not provide any details of the initial conversation at the
motel, although he testified that sometime after that initial conversation, at the
substation, Mr. Hanania admitted to having purchased the pipe the day before. On
these limited facts, we are unable to say that the record conclusively shows that Mr.
- 11 - Hanania's statements would not have been suppressed. See, e.g., Brown, 422 U.S. at
604–05 (holding that a statement made within two hours of arrest was inadmissible
when there were no intervening circumstances); State v. Rogers, 427 So. 2d 286, 288
(Fla. 1st DCA 1983) (holding that statements made the day after the arrest were
inadmissible when they were made during the same period of custody and there were
no intervening circumstances).
We are thus left with facially sufficient allegations by Mr. Hanania that his
counsel's performance in the probation violation proceedings was deficient (he failed to
file a motion to suppress that reasonable counsel would have filed) and that he suffered
prejudice as a result (a reasonable probability that the motion would have been granted
and that the only evidence establishin that he violated condition five of his probation
would have been suppressed) that the record does not refute. As such, the
postconviction court erred in summarily denying claim four of Mr. Hanania's motion.
See, e.g., McDonald v. State, 35 So. 3d 169, 170 (Fla. 2d DCA 2010) (reversing
summary denial of ineffective assistance claim based on the failure to file a motion to
suppress where "[a]bsent additional supporting facts or a finding that McDonald
consented to a search," law enforcement lacked a constitutionally permissible basis for
a search); Rodriguez v. State, 892 So. 2d 510, 510–11 (Fla. 2d DCA 2004) (reversing
summary denial of ineffective assistance claim where defendant alleged that counsel
knew that he had not consented to an otherwise illegal search of his truck).
Turning to claim three, Mr. Hanania alleged that Ms. Leighton would have
testified that he did not consent to the search of the motel room and thus asserted that
- 12 - counsel provided ineffective assistance by not calling Ms. Leighton to testify. In doing
so, Mr. Hanania sufficiently identified the witness, stated what her testimony would have
been, explained how her testimony would have affected the outcome of the
proceedings, and alleged that the witness was available to testify. See Nelson v. State,
875 So. 2d 579, 582-83 (Fla. 2004). It is not clear from his motion, however, whether
Mr. Hanania is alleging that Ms. Leighton's testimony should have been presented at a
hearing on a motion to suppress that never occurred because no such motion was
made or at the probation violation hearing that did, in fact, occur. If the former, the
claim is entirely subsumed by what the postconviction court must consider within claim
four—Ms. Leighton's alleged testimony that Mr. Hanania did not consent to a search is
simply evidence of both deficient performance and prejudice in the question of whether
a motion to suppress should have been filed or would have been granted. If the latter,
the claim is not facially sufficient because it is entirely conclusory in that it fails to
provide any facts to show that the failure to offer the testimony at the violation hearing
(where both the results of the search and the postarrest statements were introduced)
constituted either deficient performance or prejudice. See Knight, 923 So. 2d at 399;
Kennedy, 547 So. 2d at 913. The postconviction court should have offered Mr. Hanania
an opportunity to clarify this claim in regard to which hearing the testimony would relate
to and the grounds upon which it rests.
Last, in claim six, Mr. Hanania asserted cumulative error. "Based on our
reversal and remand on some of the claims, we reverse the denial of this claim and
- 13 - remand for the postconviction court to consider it after the court has resolved the
remaining claims." Hempstead v. State, 980 So. 2d 1254, 1265 (Fla. 2d DCA 2008).
In sum, we affirm the denial of claims one and five, reverse the denial of
claims two, three, four, and six, and remand for further proceedings. The postconviction
court shall allow Mr. Hanania an opportunity to amend claims two and six and shall then
either attach record evidence conclusively refuting Mr. Hanania's remaining claims or
hold an evidentiary hearing.3 See Richardson v. State, 617 So. 2d 801, 803 (Fla. 2d
DCA 1993).
Affirmed in part, reversed in part, and remanded with instructions.
NORTHCUTT and ROTHSTEIN-YOUAKIM, JJ., Concur.
3In this regard, we recognize that some of the factual allegations in the postconviction motion are refuted by the record. As explained in the text, however, when we take the asserted facts that are not refuted by the record as true, as we must at this stage of the proceedings, a summary denial was improper. Whether the unrefuted factual allegations of the motion might be refuted, by other portions of the record not attached to the order presently on appeal or at an evidentiary hearing, is not a matter that is before us.
- 14 -