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Jones v. State12/27/2000
ial court aware of this. Under these circumstances, we conclude that the plea colloquy does not conclusively refute Jones' claim. We, therefore, reverse and remand for an evidentiary hearing.
Jones also alleged that she would not have pleaded guilty if counsel had moved to suppress the results of the blood alcohol test performed on her. According to Jones, the police had no probable cause on which to request a forced blood draw pursuant to section 316.1933(2)(a), Florida Statutes (1995), and in fact did not request a legal blood draw. Rather, Jones asserts her blood was forcibly drawn without her consent and despite her repeated refusals of medical treatment by hospital personnel who did so with the acquiescence of the police in order to aid the police in their investigation. These allegations, if true, state at least a facially sufficient basis on which to suppress the blood test results. See, e.g., Elson v. State, 688 So. 2d 465 (Fla. 4th DCA 1997) (holding that Fourth Amendment protections apply to a search conducted by a private party if law enforcement directs, participates in, or acquiesces in the search). Jones alleged that although counsel was aware that this occurred, he erroneously advised her that there was no legal basis on which to suppress the blood results.
The trial court denied this claim stating the record conclusively demonstrated that Jones' counsel had actually filed a motion to suppress, that Jones was aware that he had filed such a motion, and that she waived that motion as part of the plea agreement. The trial court is correct that counsel filed a motion to suppress alleging the facts basically as presented by Jones. There is nothing in the record, however, which refutes either Jones' claim that counsel did not tell her that he had filed the motion or her claim that he advised her there was no legal basis on which to suppress the blood alcohol results. Although the record does demonstrate that Jones acknowledged during the plea colloquy that she was waiving her right to a suppression hearing (as well as her right to any defenses she might have and her right to appeal), this statement alone is not adequate to demonstrate that the motion was waived in exchange for the State's agreement to recommend a certain sentence, nor is it sufficient to demonstrate that the waiver was not induced by the erroneous advice of her counsel. We, therefore, reverse and remand this claim for an evidentiary hearing as well.
At that hearing, the State will prevail if it can show either that Jones agreed to forgo the motion to suppress after being adequately advised of its merits or that the motion to suppress was not in fact meritorious.
Affirmed in part; reversed in part; and remanded.
BLUE, A.C.J., and GREEN and STRINGER, JJ., Concur.
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