FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Citrus County, Richard A. Howard,
Turem, Live Oak, pro se.
Appearance for Appellee.
Turem appeals the summary denial of his Florida Rule of
Criminal Procedure 3.850 motion for postconviction relief.
Turem raised nine grounds for relief in his motion, although
several of these grounds are repetitive. We affirm the
postconviction court's summary denial of ground four and
the "second" ground six without further discussion.
As to grounds one, two, three, five, and seven, for the
reasons explained below, we treat these separate grounds as
one single claim and reverse for the lower court to either
hold an evidentiary hearing or attach additional court
records to its order to conclusively refute this claim. We
reverse the denial of Turem's "first" numbered
ground six where Turem alleged that his counsel was
ineffective for failing to investigate and raise an insanity
defense for being facially insufficient, and we remand to
allow Turem an opportunity to amend this claim. Finally,
because we are reversing the summary denial of more than one
individual claim, we also reverse the denial of ground eight,
which is a cumulative error claim.
2014, Turem entered a nolo contendere plea to one count of
aggravated stalking. The trial court accepted his plea and
sentenced Turem to serve ten years in prison, with the
sentence being suspended upon Turem's successful
completion of five years of drug offender probation. Turem
was subsequently arrested and charged with criminal mischief
in two separate cases, which also resulted in a violation of
his aforementioned probation. In January 2015, Turem appeared
before the trial court, with counsel, and tendered a nolo
contendere plea to the criminal mischief charges. Turem also
admitted to violating his probation. The court accepted
Turem's pleas and sentenced him to serve ten years in
prison for the aggravated stalking conviction and to
concurrent five-year prison sentences for the criminal
grounds one, two, three, five, and seven of his
postconviction motion, Turem essentially asserted, under
various theories, that his trial counsel was ineffective
because Turem was mentally incompetent at the time of his
plea, counsel allowed him to enter his plea while
incompetent, and despite Turem informing counsel of his
condition and despite making repeated requests, counsel
failed to have Turem evaluated for his competency. Turem
alleged that he suffered from long-standing mental illnesses,
including bipolar disorder, "multiple personality,
" and schizoaffective personality and that he also
attempted suicide while being held in the county jail on
these charges. Turem also alleged and listed multiple
psychotropic medications that he takes, which he claimed
caused him to be "heavily medicated" at the time of
his plea. Turem further alleged that he was "hearing
voices, seeing hallucinations, " was "in and out of
reality, " "disoriented, " "did not know
where [he] was or what he was doing, " was suffering
from "amnesia, " and that he did not understand the
nature of his charges and the consequences of his plea. Turem
pointed out that in the sentencing memorandum filed with the
trial court, his counsel acknowledged that Turem has received
treatment for a number of mental illnesses for most of his
adult life and that, in arguing for mitigation, counsel wrote
that Turem's capacity to appreciate the criminal nature
of his conduct or to conform that conduct to the requirements
of the law was substantially impaired.
postconviction court is required to conduct an evidentiary
hearing [on a rule 3.850 motion for postconviction relief]
unless the motion and record conclusively demonstrate that
the movant is not entitled to the requested relief, or the
motion is legally insufficient." Nelson v.
State, 73 So.3d 77, 84 (Fla. 2011) (citing Jacobs v.
State, 880 So.2d 548, 553 (Fla. 2004); Fla. R. Crim. P.
3.850(d)). Additionally, where no evidentiary hearing is
held, the defendant's factual allegations in the motion
must be accepted as true to the extent that they are not
refuted by the record. Peede v. State, 748 So.2d
253, 257 (Fla. 1999) (citing Lightbourne v. Dugger,
549 So.2d 1364, 1365 (Fla. 1989)).
that counsel failed to investigate a defendant's mental
health and failed to seek a competency determination is
cognizable in a rule 3.850 motion. Watts v. State,
82 So.3d 1215, 1216 (Fla. 2d DCA 2012) (citing Demarco v.
State, 31 So.3d 975, 976 (Fla. 2d DCA 2010)). Here,
although Turem's allegations and theories of ineffective
assistance of counsel on this claim encompassed several
grounds, we conclude that Turem set forth one facially
sufficient claim. See Hird v. State, 204 So.3d 483,
485 (Fla. 5th DCA 2016) (citing Jackson v. State, 29
So.3d 1161, 1162 (Fla. 1st DCA 2010) (concluding that a
defendant's claim was facially sufficient where the
defendant "allege[d] that he was incompetent and did not
understand the consequences of his plea, that he had a
history of mental illness, had not taken his schizophrenia
medication, was suffering from delusions and hearing voices
at the time of his plea and that he informed counsel of his
summarily denying these aggregate claims, the postconviction
court attached to its order a copy of the twelve-page
transcript of the change of plea hearing. At this hearing,
counsel stated to the court that Turem had a well-documented
history of mental illness, but that he had been more
cooperative since being administered his medications at the
jail. The extent of the inquiry into Turem's competency
at the plea hearing was the court asking counsel if Turem was
competent and counsel's response, "I believe
so." No inquiry was made directly of Turem as to his
mental condition at the time of the plea, whether he was
regularly taking his psychotropic medications and, if so,
whether those medications interfered or assisted with his
ability to knowingly, intelligently, and voluntarily enter
as the movant, has the burden to establish that he was
mentally incompetent at the time of his plea. Thompson v.
State, 88 So.3d 312, 320 (Fla. 4th DCA 2012). Moreover,
"[n]ot every manifestation of mental illness
demonstrates incompetence to stand trial; rather, the
evidence must indicate a present inability to assist counsel
or understand the charges." Id. at 319 (quoting
Card v. Singletary, 981 F.2d 481, 487-88 (11th Cir.
1992)). "Further, a suicide attempt is not alone
sufficient to raise a question about competency to stand
trial." Id. at 321 (citing Nelson v.
State, 43 So.3d 20, 29 (Fla. 2010)). However, in this
case, due to Turem's lengthy and documented history of
mental illness, known by both his counsel and the court, we
find that the colloquy and the abbreviated discussion on the
record does not conclusively refute the factual allegations
of Turem's claim.
"first" ground six of his motion, Turem alleged
that his counsel was ineffective for failing to adequately
investigate an insanity defense. However, because Turem did
not allege in his motion that he was insane at the time he
committed his criminal offenses, resulting in the violation
of his probation, this claim is facially insufficient.
See Luckey v. State, 979 So.2d 353, 354 (Fla. 5th
DCA 2008) (holding that the defendant's failure to allege
in a rule 3.850 motion that he was insane at the time of the
offense renders the claim facially insufficient (citing
Gillis v. State, 807 So.2d 204 (Fla. 5th DCA 2002);
Baker v. State, 404 So.2d 1151 (Fla. 5th DCA
1981))). Because this pleading defect may be correctable,
Turem is entitled to at least one opportunity to correct this
deficiency. See id. at 355 (citing Spera v.
State, 971 So.2d 754 (Fla. 2007)).
we reverse the summary denial of ground eight and remand for
reconsideration based upon our reversal here of the
individual claims. See Legrande v. State, 206 So.3d
146, 147 (Fla. 5th DCA 2016) ("As two of Legrande's
claims require reversal for attachment of the record or
evidentiary hearing, we ...