FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit
Court for Polk County; Jalal Harb, Judge.
Andres Mendez-Domingo, pro se.
Mendez-Domingo appeals from an order summarily denying his
motion under Florida Rule of Criminal Procedure 3.850 that
alleged that his counsel in the trial court labored under a
conflict of interest. We reverse and remand for the
postconviction court to give him an opportunity to file an
amended motion that makes sufficient allegations of an actual
conflict that adversely affected his representation.
Mendez-Domingo pleaded no contest to two counts of attempted
capital sexual battery, and the trial court sentenced him to
thirty years' prison on the first count to be followed by
thirty years' probation on the second. In his rule 3.850
motion, he asserted a single claim of ineffective assistance
of counsel based on a conflict of interest. In particular, he
alleged that his counsel failed to tell the trial court that,
in addition to representing Mr. Mendez-Domingo, counsel also
represented another man in a separate case who Mr.
Mendez-Domingo said confessed to him that he had committed
the sexual batteries at issue. Mr. Mendez-Domingo wanted his
counsel to negotiate a lenient sentence in exchange for his
testimony against the man who confessed. He asserted that his
counsel's failure to tell the court about the conflict of
interest denied him due process and the effective assistance
postconviction court summarily denied the motion. It
concluded that the Office of the Public Defender originally
was assigned to represent both Mr. Mendez-Domingo and the man
who confessed to Mr. Mendez-Domingo but later withdrew from
the other man's case based on a conflict of interest. The
postconviction court attached to its order the public
defender's motion to withdraw from that case and the
order granting that motion. The court also found that Mr.
Mendez-Domingo then hired an attorney and that the Office of
Criminal Conflict Counsel was appointed for the other man.
Mr. Mendez-Domingo thereafter filed a motion for rehearing,
which the postconviction court denied.
postconviction court erred by attaching records from the
other man's case in support of its order summarily
denying Mr. Mendez-Domingo's motion. Rule 3.850(f) allows
a postconviction court to summarily deny a motion if the
court record conclusively refutes the movant's claims.
The rule defines the "court record" as "files
and records in the case" and specifies that "[t]he
files and records in the case are the documents and exhibits
previously filed in the case and those portions of the other
proceedings in the case that can be transcribed." Fla.
R. Crim. P. 3.850(f)(4). Documents other than those specified
in the rule cannot be used to summarily deny a rule 3.850
motion. See Forte v. State, 189 So.3d 1043, 1044
(Fla. 2d DCA 2016) ("Although the postconviction court
attached the transcript from the codefendant's hearing to
the order denying Forte's claims, that transcript was not
part of Forte's record and the postconviction court erred
in relying on it to deny the claims."). Mr.
Mendez-Domingo's counsel's notice of appearance in
Mr. Mendez-Domingo's case, the sole portion of Mr.
Mendez-Domingo's record that the postconviction court
attached to its order, does not conclusively refute Mr.
Mendez-Domingo's assertion of a conflict of interest.
said, Mr. Mendez-Domingo did fail to sufficiently plead an
ineffective assistance claim based on a lawyer's alleged
conflict of interest.
[I]n order to establish an ineffectiveness claim premised on
an alleged conflict of interest the defendant must
"establish that an actual conflict of interest adversely
affected his lawyer's performance." A lawyer suffers
from an actual conflict of interest when he or she
"actively represent[s] conflicting interests." To
demonstrate an actual conflict, the defendant must identify
specific evidence in the record that suggests that his or her
interests were compromised. A possible, speculative or merely
hypothetical conflict is "insufficient to impugn a
Hunter v. State, 817 So.2d 786, 791-92 (Fla. 2002)
(second alteration in original) (citations omitted) (quoting
Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)). Thus,
to plead a facially sufficient ineffectiveness claim based on
a conflict, a post conviction movant must allege sufficient
facts to show both an actual conflict of interest and that
the actual conflict adversely affected counsel's
representation of the movant. See, e.g., Cole v.
State, 35 So.3d 173, 174 (Fla. 2d DCA 2010) (finding
claim legally insufficient where movant "did not allege
the existence of an actual conflict or that his interests
Mr. Mendez-Domingo's rule 3.850 motion alleged that his
counsel at some point represented conflicting interests, it
failed to allege facts indicating that the conflict adversely
affected counsel's representation of Mr. Mendez-Domingo.
The motion did not identify who had the alleged conflict or
at what point in time that lawyer represented both Mr.
Mendez-Domingo and the man who allegedly confessed- i.e.,
whether the dual representation happened at any time material
to Mr. Mendez-Domingo's claim. And although it alleged
that counsel failed to advise the court of the conflict, the
motion did not say that counsel failed to tell Mr.
Mendez-Domingo about the problem, did not say that Mr.
Mendez-Domingo declined to waive the conflict, and did not
say that counsel failed to seek the plea agreement Mr.
Mendez-Domingo allegedly wanted.
Defense counsel have an ethical obligation to avoid
conflicting representations and to advise the court promptly
when a conflict of interest arises during the course of
trial. Absent special circumstances, therefore, trial courts
may assume either that multiple representation entails no
conflict or that the lawyer and his clients knowingly accept
such risk of conflict as may exist.
Cuyler, 446 U.S. at 346-47 (footnote omitted). Mr.
Mendez-Domingo's claim is insufficiently pleaded. See
Spera v. State, 971 So.2d 754, 758 (Fla. 2007)
(explaining that a facially sufficient rule 3.850 motion
"sets out a cognizable claim for relief based upon the
legal and factual grounds asserted" ...