Wesby v. State
230 So. 3d 939
Fla. Dist. Ct. App.2017Background
- Keith Wesby was identified by an undercover detective as the seller "Dino" after three controlled buys arranged via a confidential informant (CI) and was convicted of multiple drug offenses; convictions affirmed on direct appeal (Wesby v. State).
- First controlled buy (Oct. 9, 2008) was set up by the CI through Michael Brown (Wesby’s brother); the detective bought pills believed to be hydrocodone but they were Fioricet.
- Second buy (Oct. 23, 2008) produced actual hydrocodone from "Dino"; the CI and Brown did not participate in that transaction.
- Third buy (Mar. 2, 2009) involved cocaine purchased from "Dino," again without CI or Brown present.
- Detective later matched a photograph of Wesby to "Dino" based on a vehicle record linking Brown and Wesby; Wesby’s trial defense was misidentification.
- On postconviction review under Fla. R. Crim. P. 3.850, Wesby alleged trial counsel was ineffective for failing to move to disclose the CI (Ground 3); the court summarily denied most grounds but held an evidentiary hearing on other claims. The appellate court reversed the summary denial of Ground 3 and remanded for an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument (Wesby) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether counsel was ineffective for not moving to disclose the CI | CI arranged/was present at 1st buy and would have corroborated misidentification defense; counsel’s failure prejudiced outcome | CI was only at 1st buy (not at hydrocodone buy), so disclosure would be immaterial; detective’s ID alone would still convict | Court reversed summary denial and remanded for evidentiary hearing because record does not conclusively refute claim |
| Whether CI testimony would be material to trafficking charge | CI could show Wesby not present at first buy, undermining detective’s overall credibility | CI’s absence from later buys makes testimony irrelevant to trafficking charge | Court held CI testimony could still impeach detective and affect credibility; remand required |
| Standard for obtaining CI disclosure to support a defense | Wesby asserted he made a colorable showing of misidentification and sworn allegations that CI’s testimony would help | State contested materiality and prejudice | Court applied the rule that defendant must make a preliminary showing of colorable defense and found Wesby’s sworn allegations were not conclusively refuted by record |
| Whether summary denial was appropriate without an evidentiary hearing | Wesby argued factual allegations must be accepted unless refuted by record | State argued record refutes materiality and prejudice | Court held summary denial improper as factual assertions weren’t conclusively refuted; remanded for hearing |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance standard)
- Wilson v. State, 13 So. 3d 83 (Fla. 2d DCA 2009) (misidentification claim requires sworn allegations showing CI testimony would be helpful)
- McLoyd v. State, 768 So. 2d 1159 (Fla. 2d DCA 2000) (CI testimony from a single buy can be material to discredit officer ID and warrants an evidentiary hearing)
- Borrego v. State, 970 So. 2d 465 (Fla. 2d DCA 2007) (defendant must make preliminary showing of colorable defense before disclosure)
- Hernandez v. State, 546 So. 2d 761 (Fla. 2d DCA 1989) (same principle on CI disclosure)