final until disposition of timely filed motion for rehearing.
of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Jeffrey R.
Levenson, Judge; L.T. Case No. 10-8166 CF10A.
Long, Jr., Miami, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Joseph D.
Coronato, Jr., Assistant Attorney General, West Palm Beach,
defendant appeals from the trial court's order summarily
denying his Florida Rule of Criminal Procedure 3.850 amended
motion for postconviction relief. He argues that he was
entitled to an evidentiary hearing on his claim of
ineffective assistance of counsel based on counsel's
alleged failure to investigate, interview, and call an alibi
witness. He specifically argues that the trial court's
order incorrectly misstates the timeline as alleged in the
motion and, therefore, the record does not conclusively
refute his claim of ineffective assistance of counsel. We
agree with this argument and reverse and remand for the trial
court to provide record attachments which refute the
defendant's claim or to conduct an evidentiary hearing on
a jury trial, the defendant was convicted of attempted felony
murder and robbery with a firearm. The robbery occurred at a
pawn shop in Hollywood at approximately 12:30 p.m. The
victim, a store employee, identified the defendant as one of
defendant's rule 3.850 motion, he claimed that his trial
counsel was ineffective for failing to investigate,
interview, and call an identified alibi witness who allegedly
would have testified that she was with the defendant
"from approximately 10:00 a.m. into and during the early
afternoon hours" on the day of the robbery. The motion
specified that at approximately 12:00 p.m, the alibi witness
was with the defendant at a restaurant in Miramar,
"miles away from the scene of the crime in
Hollywood." The motion further alleged that the alibi
witness had been available and prepared to testify at trial.
The motion also alleged the alibi witness's testimony
presented a reasonable probability that the outcome of the
defendant's trial would have been different but for
counsel's ineffectiveness, because the only direct
identification of the defendant came from the victim through
a photo lineup identification over eight months after the
crime, and an in-court identification at trial nearly
two-and-a-half years after the crime.
trial court entered an order summarily denying the
defendant's motion. In the order, the court reasoned:
For a defendant to state a facially sufficient claim of
ineffectiveness assistance of counsel for failure to call a
witness at trial, the defendant must allege: (1) the identity
of the prospective witness, (2) the substance of the
witness's testimony, (3) the availability of the witness
to testify at trial, and (4) an explanation concerning how
the omission of the witness's testimony prejudiced the
outcome of the trial. See Nelson v. State, 875 So.2d
57, 582-83 (Fla. 2004).
This Court finds the instant ground for relief is denied
because there is not a reasonable probability that the
omission of . . . [the] alibi witness prejudiced the outcome
of the trial. The alibi witness's potential testimony
would place the Defendant with her from 10:00 a.m. to 12
p.m.; however, the robbery was committed at
approximately 12:30-12:45 p.m. . . . Even assuming arguendo
that the Defendant was with the witness from 10:00 a.m.
to 12:00 p.m., the Defendant would have still had an
opportunity to leave the witness's presence and commit
appeal followed. The defendant argues that the trial
court's order incorrectly misstates the timeline as
alleged in the motion and, therefore, the record does not
conclusively refute his claim of ineffective assistance of
counsel. Our standard of review is well-established:
To uphold the trial court's summary denial of claims
raised in a 3.850 motion, the claims must be either facially
invalid or conclusively refuted by the record. Further, where
no evidentiary hearing is held below, we must accept the
defendant's factual ...