BRYAN R. BANASH
v.
STATE OF FLORIDA

Fla. 5th DCA | 2020-05-22
No. 19-3770
Hill, J., Harris, J., Grosshans, J., Sasso, J.
Florida District Court of Appeal, Fifth District (2020)

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Holding

Trial counsel's alleged failure to investigate and preserve a motion to suppress statements requires either record documents conclusively refuting the claim or an evidentiary hearing.

Headnotes

[1] When a postconviction relief claim alleges that trial counsel failed to investigate and file a motion to suppress that would be dispositive, and nothing in the record con…

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Facts & Procedural History

Banash appealed the summary denial of his postconviction relief motion under Florida Rule of Criminal Procedure 3.850. He alleged his trial counsel wa…

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Topics
Statements Motion To Suppress Statements Strickland Standard Motion To Suppress

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Opinion of the Court
Sasso

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

BRYAN R. BANASH,

Appellant,

v. Case No. 5D19-3770

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed May 22, 2020

3.850 Appeal from the Circuit Court for Lake County, Mark J. Hill, Judge.

Bryan R. Banash, Madison, pro se.

No Appearance for Appellee.

PER CURIAM.

Appellant, Bryan R. Banash, appeals the summary denial of his Motion for Postconviction Relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand ground six for either attachment of record documents conclusively refuting the claim or for an evidentiary hearing. In all other respects, we affirm. In ground six, Appellant alleged that his trial counsel was ineffective for abandoning a pretrial motion to suppress statements Appellant made while he was in the hospital. Appellant further argued his trial counsel was ineffective for failing to preserve

HARRIS, GROSSHANS, and SASSO JJ., concur.

Footnotes
2 the motion to suppress for appellate review as part of Appellant’s plea agreement. As nothing in the record conclusively refutes his claim that trial counsel failed to investigate and/or file a motion to suppress, it is not possible to determine whether defense counsel was ineffective in failing to ensure that the motion, which would be dispositive, was properly preserved for appeal. We therefore reverse and remand as to that portion of Appellant’s claim. See, e.g., Merkison v. State, 1 So. 3d 279, 281 (Fla. 1st DCA 2009). AFFIRMED in part; REVERSED in part; and REMANDED.

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