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; Paul L.
Backman, Judge; L.T. Case No. 08-9302CF10A.
Haughwout, Public Defender, and Erika Follmer, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Cynthia L.
Comras and Matthew Steven Ocksrider, Assistant Attorney
Generals, West Palm Beach, for appellee.
Cruz appeals a trial court order that denied all eleven
grounds of his motion for post-conviction relief, ten
summarily and one after evidentiary hearing. In his initial
brief, he limits his challenges to the denial of four
grounds. We affirm in part and reverse and remand in part for
an evidentiary hearing on two grounds.
was tried, along with a co-defendant, and convicted of two
counts of armed robbery with a firearm. He was sentenced to
life in prison as a prison releasee reoffender on each count,
to run concurrently.
trial, the prosecution presented evidence that appellant and
his co-defendant robbed a cell phone store, armed with a
firearm. They removed cash from the register and took
property from employees. Police found cash on appellant and
his cell phone in the getaway car. Appellant's defense
testified at trial that the currency found on him after his
arrest was tip money earned at a car wash. He also testified
that he had detailed the car in which his cell phone was
found and had placed his cell phone in it to charge. On
direct appeal, he argued trial court error in failing to
conduct a Richardson hearing after the prosecution presented at
trial a non-disclosed witness who undermined his defense. The
witness was Kendall Murray, owner and/or bookkeeper at the
car wash. She testified she had never met appellant and that
he did not work there.
Court affirmed in Cruz v. State, 90 So.3d 893 (Fla.
4th DCA 2012), with a citation to Guzman v. State,
42 So.3d 941 (Fla. 4th DCA 2010). In Guzman, this
Court held that a discovery violation had not been preserved
for review when it occurred during the State's direct
examination of a witness and the defendant completed
cross-examination before objecting.
ground seven of his motion for post-conviction relief,
appellant claims ineffective assistance of trial counsel for
failure to timely make the Richardson objection. The
record demonstrates that defense counsel did not object to
the Richardson violation until after completing
cross-examination of Murray. The trial court did not conduct
a proper Richardson hearing and did not make
findings on the three prongs of Richardson requiring
determination of: (1) whether the discovery violation was
inadvertent or willful; (2) whether it was trivial or
substantial; and (3) whether noncompliance with the discovery
requirements prejudiced the defense's ability to prepare
for trial. Thomas v. State, 63 So.3d 55, 59 (Fla.
4th DCA 2011) (citing State v. Evans, 770 So.2d
1174, 1182 (Fla. 2000)).
Murray's testimony, left unchallenged due to the
discovery violation, contradicted defense counsel's
opening statement and appellant's own testimony about the
money found on him. The discovery violation also hampered
defense counsel's ability to investigate and test
Murray's memory of employees and the accuracy of her
trial testimony. Appellant alleged a deficiency of defense
counsel which prejudiced his defense, such that the claim was
legally sufficient. Strickland v. Washington, 466
U.S. 668, 687 (1984). The trial court erred in summarily
denying ground seven.
ground five, appellant claims counsel rendered ineffective
assistance for failing to file a notice of alibi defense and
call alibi witness Chauncy Green. Cruz alleged he was with Green at the time
of the robberies and nowhere near the scene where they
occurred. He said he gave defense counsel Green's name
and address and told him about the alibi the first time
counsel visited him in jail. He alleged Green was available
and willing to testify. This claim was legally sufficient.
Nelson v. State, 875 So.2d 579 (Fla. 2004).
State argued in its response filed below that this claim was
refuted by defense counsel's statement in trial that he
did not intend to present an alibi defense or witness.
However, defense counsel did not give sworn testimony at
trial that could have been considered. To the extent his
statement suggested that counsel made a strategic or tactical
decision not to present this defense, or that he was never
informed of an alibi witness, the trial court should have
conducted an evidentiary hearing rather than summarily