
    Keith Lamar WESBY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-4661
    District Court of Appeal of Florida, Second District.
    Opinion filed November 15, 2017
    
      Keith Wesby, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General* Tampa, for Appel-lee. • ■ •
   BADALAMENTI, Judge.

Keith Lamar Wesby appeals the denial of his motion for postconviction relief. See Fla. R. Crim. P. 3.850. The motion alleged thirteen separate grounds for relief, most of. which were summarily denied without an evidentiary hearing, with the exception of Grounds 7a and 7b—these were denied after an. evidentiary hearing. We affirm the postconviction court’s ruling, with the exception of its summary denial of Ground 3. Because Mr. Wesby’s allegation that his trial counsel was ineffective for failing to move for disclosure of a confidential informant (Cl) is not conclusively refuted by the record, we reverse the postconviction court’s summary denial of Ground 3 and remand for an evidentiary hearing.

Mr. Wesby allegedly, participated, in three controlled drug buys with an undercover detective of the St. Petersburg Police Department. The first buy was'set up through a Cl who contacted Michael Brown—-Mr. Wesby’s brother—to arrange the purchase. On October 9, 2008, the detective and the Cl met with Mr. Brown at a convenience store, and an acquaintance of Mr. Brown’s named “Dino” sold the detective some Fioricet pills. The detective was led to believe that these were actually hydrocodone pills, but they were not.

On October 23, 2008, “Dino” contacted the detective and told him he may have some hydrocodone for sale. “Dino” and the detective met in the front yard of a residence, where “Dino” sold the detective hy-drocodone in liquid and pill form. Neither the Cl nor Mr. Brown took part in this transaction.

■ On March 2, 2009, the detective contacted “Dino” and asked him if he had any more hydrocodone. “Dino” said that he did not, but that he'had cocaine instead. The detective then purchased an eight-ball of cocaine from “Dino.” Again, neither the Cl nor Mr. Brown took part in this transaction.

During these three transactions, the de- ' tective was unable to determine “Dino’s” real name. But after -the detective researched the tag number- of Michael Brown’s car, he found records of a previous traffic stop during which Mr. Wesby was present in the car. The detective then obtained a photograph of Mr. Wesby and identified him as “Dino.”

Based on the detective’s identification of Mr. Wesby as “Dino,” Mr. Wesby was charged and adjudicated guilty of unlawful sale of a prescription drug, trafficking in hydrocodone, sale of cocaine, and possession of cocaine. Mr. Wesby’s defense at trial was misidentification.-Mr. Wesby was sentenced to a term of imprisonment for an overall length of twenty-five years, with a twenty-five-year minimum mandatory sentence for the trafficking charge. This court affirmed Mr, Wesby’s • convictions and sentences on direct appeal. Wesby v. State, 109 So.3d 803 (Fla. 2d DCA 2013) (table decision).

Mr. Wesby then filed his pro se motion for postconviction relief. In Ground 3 of his operative motion, Mr. Wesby alleged that his trial counsel was ineffective for failing to move for disclosure of the CL Mr. Wes-by further alleged in his operative motion (1) that Mr. Wesby informed his counsel that he is not the person who sold drugs to the detective, (2) that disclosure of the Cl was necessary to establish the defense of misidentification, (3) that the Cl was present for the first controlled buy, (4) that the State’s only identification testimony came from the detective, and (5) that had defense counsel moved for disclosure of the Cl and then called him or her to testify, the Cl would have corroborated Mr. Wes-by’s claim that he was misidentified as “Dino.”

In its response, the State points to one sentence in Mr. Wesby’s motion which provides that the detective’s “identification testimony was the only evidence submitted to the jury to prove ... the [hjydrocodone trafficking charge.” (Emphasis added.) Because the Cl was. only present for the October 9 transaction and not the October 23 transaction—which is when the detective first received real hydrocodone from “Dino”—the State argues that disclosure of the Cl would have been, immaterial ■ to the hydrocodone trafficking charge. Moreover, even if the Cl had been disclosed and called to testify, the State maintains that the detective’s trial - testimony would, -not have changed and that. Mr. Wesby. would have been convicted anyway. In- summarily denying Ground 3, the postconviction court adopted the State’s position wholesale. We disagree and reverse. Mr. Wesby was, at minimum, entitled .to an evidentiary hearing on Ground 3 of his motion for postcon-viction relief.

To prevail .on a claim of ineffective assistance of counsel, a defendant must show (1) that counsel’s performance was unreasonable under prevailing professional norms and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have, .been different.. See generally Thompson v. State, 990 So.2d 482, 489-90 (Fla. 2008) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Where no evidentiary hearing is held on an .issue in a postconviction motion,, “we must accept the defendant’s factual allegations to the extent they are not refuted by the record.” Foster v. State, 810 So.2d 910, 914 (Fla. 2002) (quoting Peede v. State, 748 So.2d 253, 257 (Fla. 1999)). We may only affirm a postconviction court’s summary denial if the record conclusively shows that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D).

“When asserting that disclosure of information is necessary to/éstablish a specific defense, ‘[t]he defendant must make a preliminary showing of the colorability of the defense prior to disclosure.’ ” State v. Borrego, 970 So.2d 465, 467 (Fla. 2d DCA 2007) (alteration in original) (quoting State v. Hernandez, 546 So.2d 761, 762 (Fla. 2d DCA 1989)). This court has previously noted that a movant asserting a misidentifícation defense involving a Cl must provide “[s]worn allegations supporting a misiden-tification defense for which the Cl’s testimony would be helpful.” Wilson v. State, 13 So.3d 83, 84 (Fla. 2d DCA 2009). Here, Mr. Wesby properly alleged that he did not sell- the detective any drugs, that the Cl arranged the first transaction and was present at the time- of the first transaction, and that the Cl would have testified that Mr. Wesby was not present at the transaction and was not the person who sold the drugs. See id. at 84-85.

We are not persuaded by the State’s argument that the Cl’s testimony was immaterial because the Cl was only present for the first buy. If the Cl had been disclosed and testified that Mr. Wes-by was not present at the October 9 transaction, the credibility of the detective would have been undermined as to the subsequent transactions. This court faced a similar fact pattern in McLoyd v. State, 768 So.2d 1159, 1160 (Fla. 2d DCA 2000), where a law enforcement officer used a Cl to set up' a controlled buy with the defendant, Jimmy McLoyd. The officer obtained Mr.' McLoyd’s contact information and set up a second buy, this time without the assistance of the Cl. Id. Mr. McLoyd was convicted and adjudicated guilty on two counts of sale of cocaine and two counts of possession with intent to sell. Id. He then filed a motion for postconviction relief arguing that his counsel was ineffective for failing to call the Cl as a witness. Mr. McLoyd asserted that had the Cl been called to testify, she would have revealed that “she never met McLoyd and that he never sold her illegal drugs.” Id.

The postconviction court summarily rejected Mr. McLoyd’s argument because (1) hearsay testimony from the officer established that the Cl was unavailable to testify because she was in rehab and (2) the omission of the Cl’s testimony could not have prejudiced the trial because it was cumulative of the officer’s testimony. Id. at 1161. On appeal, this court reversed. Concerning the postconviction, court’s second point about cumulative testimony, this court explained that if the Cl had testified that she did not participate in the first transaction with the officer, then there would be a reasonable probability that the jury would not have convicted Mr. McLoyd solely on the testimony of the officer, even though the Cl was not present for the second transaction. Id. Accordingly, this court remanded the case to the postconviction court for an evidentiary hearing. -

Our reasoning in McLoyd rebuts the State’s argument that the Cl needed to have been present' at the second or third transactions for his or her testimony to be material. Even if the Cl could only testify whether Mr. Wesby was present at the first transaction, such testimony might have discredited the detective’s ability to identify Mr. Wesby in general. Moreover, we note that in Ground 7b of his motion, Mr. Wesby alleged that his counsel was ineffective for failing to call Michael Brown as a witness and that Mr. Brown, had he been called, would have testified that Mr. Wesby was not “Dino.” The postconviction court granted Mr. Wesby an evidentiary hearing on Ground 7b, even though Mr. Brown was only present for the first transaction. If Mr. Brown’s absence from the second and third transactions did not preclude an evidentiary hearing on Ground 7b, then surely the Cl’s absence from those transactions does not preclude an evidentiary hearing on Ground 3.

Thus, the State has failed to conclusively refute Mr. Wesby’s allegation that his trial counsel was ineffective for failing to move for disclosure of the Cl. Therefore, we reverse the postconviction court’s summary denial of Ground 3 and remand for an evidentiary hearing. See Wilson, 13 So.3d at 84. In all other respects, we affirm.

Affirmed in part; reversed in part; remanded with instructions.

KHOUZAM and SLEET, JJ., Concur. 
      
      , All proper rule 3.850 motions are sworn. See Fla. R. Crim. P. 3.850(c).
     
      
      . From the limited facts in the opinion, it seems as though the Cl’s identity in McLoyd was already known to defense counsel prior to trial, even though counsel still did not'call the Cl to testify. Although the Cl was not disclosed in the case before us, we do not believe this difference is significant to the ultimate question of whether Mr. Wesby’s allegation is conclusively refuted by the record.
     