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Capalbo v. State

Florida Court of Appeal, Fourth District

November 2, 2011

Albert CAPALBO, Appellant,
STATE of Florida, Appellee.

Page 839

Albert Capalbo, Punta Gorda, pro se.

Page 840

Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.


Albert Capalbo appeals the summary denial of his Rule 3.850 motion for postconviction relief. We affirm.

Appellant accepted a ten-year offer extended by the court and pleaded no contest to attempted first degree murder. According to the factual basis for the plea and the probable cause affidavit, appellant knocked on the victim's door and shot the victim twice at close range. The victim was appellant's neighbor and several witnesses heard appellant threaten to kill the victim and say this was his " last warning" before the shooting. Appellant allegedly made several incriminating statements to police after his arrest.

In his motion, he alleged that he informed defense counsel that he wished to pursue self-defense, but defense counsel told him he " could not" because the victim's version of events differed from his own. He claims that, had counsel not misadvised him, he would not have accepted the plea and would have proceeded to trial. He alleges that the victim had harassed him on numerous occasions and that he had complained to the apartment manager that the victim was selling drugs and making too much noise. According to appellant, on the day of the shooting, he argued with the victim who left after the confrontation. When the victim returned, appellant approached him and asked him to " leave him alone." The victim then allegedly made a derogatory remark and turned around. Appellant alleges that the victim reached under his shirt towards his waistband and that he believed he was reaching for a weapon. Appellant shot him twice in purported self-defense.

Appellant argues that the State mischaracterizes his claim. The State maintains that counsel was not deficient in advising appellant that self-defense was not plausible under the circumstances. Appellant, however, contends on appeal that his claim was actually that counsel gave him what he believed was expert legal advice, that self-defense " is not applicable," as a matter of law, where the victim gives a different version of events. He argues that the plea colloquy, which did not expressly address the availability of self-defense, does not refute his claim.

A postconviction movant cannot disown knowledge of the obvious. A postconviction court is not required to hold hearings on absurd claims or accept as true allegations that defy logic and which are inherently incredible. See Montero v. State, 996 So.2d 888, 891 (Fla. 4th DCA 2008) (holding that, under the circumstances of that case, the allegation that defendant would not have entered the plea was " inherently unbelievable and contrary to common sense" ), rev. denied, 15 So.3d 581 (Fla.2009); Evans v. State, 843 So.2d 938, 940 (Fla. 3d DCA 2003) (finding that a defendant's claim that he would not have entered his plea was " so thoroughly contrary to common sense as to be inherently incredible, and does not warrant a hearing" ).

Appellant admits he was aware of self-defense because he advised counsel that he wanted to pursue it. Appellant's dubious claim that he believed counsel's alleged expert advice that self-defense can be asserted only if the victim agrees with the defendant amounts to an allegation that appellant was unaware that he could contest at trial the victim's version of events.

The plea colloquy refutes this allegation. Appellant was 64 years old at the time of the plea. He had no difficulty with the

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English language and had completed four years of college. In the plea colloquy, appellant acknowledged that he understood that he had the right to a jury trial and to require the State to prove the charges against him beyond a reasonable doubt. The court advised him that he could confront the witnesses against him. He understood that by entering the plea he was waiving any defenses he may have to the charges.

Courts should not misapply the principle that, in postconviction relief proceedings, " where no evidentiary hearing is held below, [the court] must accept the defendant's factual allegations to the extent they are not refuted by the record." P ...

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