Jimmy Velez, in proper person.
Pamela Jo Bondi, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
Before WELLS, C.J., and SHEPHERD, and EMAS, JJ.
Jimmy Velez appeals the trial court's order denying, without evidentiary hearing, his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.
In his motion, Velez asserted two claims of ineffective assistance of his trial counsel:
1. Trial counsel provided affirmative misadvice which caused Velez to reject a " favorable" plea offer and proceed to trial. Velez claims that, but for the affirmative misadvice, he would have accepted the plea offer.
2. Trial counsel failed to properly move for a judgment of acquittal based upon the State's failure to prove the " knowledge" element of trafficking in heroin.
The State, in its response to this Court, candidly and properly concedes that the first claim should be remanded to the trial court for further consideration. We reverse the trial court's order on this claim and remand for the trial court to consider whether Velez is entitled to an evidentiary hearing.
As to Velez's second claim, the trial court attached to its order a portion of the trial testimony of one of the narcotics officers, as well as the recorded post- Miranda statement of Velez (which was introduced into evidence at trial).
In his post- Miranda statement, Velez told the officer:
— Velez bought the substance " from a person who brought it from Colombia" ;
— Velez did not know the person he bought the substance from and did not ...