FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Citrus County, Richard A.
Erwing Black, Wewahitchka, pro se.
Jo Bondi, Attorney General, Tallahassee, and Kristen L.
Davenport, Assistant Attorney General, Daytona Beach, for
Black (the defendant) appeals the post-conviction court's
order summarily denying ground seven of his motion for
post-conviction relief, filed pursuant to rule 3.850 of the
Florida Rules of Criminal Procedure. Ground seven alleged
ineffective assistance of counsel. We reverse and remand for
an evidentiary hearing.
prevail on a claim of ineffective assistance of counsel, a
party must demonstrate both deficient performance by counsel
and prejudice." Guevara v. State, 42
Fla.L.Weekly D1928 (Fla. 5th DCA Sep. 1, 2017).
defendant filed a rule 3.850 motion raising nine grounds for
post-conviction relief. In ground seven, the motion alleged
that trial counsel was ineffective for failing to call
co-defendant Philip Snead as a defense witness because Snead
would have testified that the defendant was not present at
the crime scene. The defendant filed an affidavit from Snead,
which stated that Snead was available and willing to testify
at the defendant's trial and that the defendant was not
involved in the crime or present at the crime scene. The
motion stated that Snead testified to such at his own trial
and would do so again, if needed. The post-conviction court
summarily denied ground seven, finding that it was refuted by
As to Philip Snead's affidavit provided by the Defendant
in the Second Motion to Amend, it is noted that in the
companion case 2013-CF-1000A, Philip Snead did testify on his
own behalf and stated the whole incident was merely a fight
between intoxicated friends (he and the victim) and that
Julius Black was not present. This is essentially what the
affidavit in the Second Motion to Amend states.
Notwithstanding this self-serving testimony, Philip Snead was
found guilty of felony battery in a jury trial in his case.
It is also noted that Julius Black's trial was held on
August 20, 2014 (case 2013-CF-1000B), which is before the
trial of Philip Snead on June 23, 2015 (case 2013-CF-1000A).
Thus, it is unlikely that Philip Snead would have testified
at Julius Black's trial before his own trial to confess
that he was the sole perpetrator and that Julius Black was
not present. Obviously, Mr. Snead would have had to
"plead the Fifth" and subject himself to
cross-examination by the State - something his attorney would
have never allowed. . . .
In sum, there is overwhelming evidence from the victim and
from witnesses Aaron Salcido and Brian Pedroza, that Julius
Black, a cousin of co-defendants Philip Snead and Kystal
[sic] Smith, was the black male wearing a hoodie that night
whose nickname was "Doc" and was present and
participated in the attack on the victim. Philip Snead's
affidavit is the same as his own trial testimony, but it is
unlikely he would have testified at Julius Black's trial
and confessed he was the sole attacker before his own trial.
Even so, with overwhelming evidence to the contrary, Philip
Snead's testimony would not have been credible, and a
jury did not find his testimony credible in his own trial
uphold the summary denial of a rule 3.850 motion, the claims
made must either be facially invalid as a matter of law or be
conclusively refuted by the record. In undertaking this
review, the factual allegations of the motion must be
accepted as true unless refuted by the record."
McKinnon v. State, 221 So.3d 1239, 1240 (Fla. 5th
DCA 2017) (citation omitted).
although the post-conviction court concluded that Snead would
not have testified because of self-incrimination concerns,
nothing in the record supports this conclusion. See
Forte v. State, 189 So.3d 1043, 1044 (Fla. 2d DCA
("The State argues that because the codefendant had
not been sentenced when Forte proceeded to trial the
codefendant could have invoked his Fifth Amendment right.
However, nothing in the limited record before us supports the
State's contention."); see also
Echevarria v. State, 976 So.2d 84, 85 (Fla. 3d
the post-conviction court improperly evaluated Snead's
credibility. Generally, an evidentiary hearing is required to
assess the reliability and credibility of allegations in an
affidavit attached to a motion for post-conviction relief.
McKinnon, 221 So.3d at 1238; Cueto v.
State, 88 So.3d 1064, 1068 (Fla. 3d DCA 2012);
Barrow v. State, 940 So.2d 1235, 1236 (Fla. 5th DCA
the defendant's claim cannot be denied on lack of
prejudice grounds. The post-conviction court attached
excerpts of the trial testimony of the victim, two
eyewitnesses, and a police officer. Based on the excerpted
testimony of these witnesses, it cannot be summarily
determined that ...