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Castro v. State

Florida Court of Appeals, Fifth District

March 23, 2018

FELIX CASTRO, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Orange County, Mark S. Blechman, Judge.

          Felix Castro, Mayo, pro se.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.

          PER CURIAM.

         Felix Castro appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Castro raised eight grounds for relief in his motion. We affirm, without further discussion, the postconviction court's denial of Grounds One through Seven. As to Ground Eight, for the reasons explained below, we reverse for the lower court to either hold an evidentiary hearing or attach additional court records to its order to conclusively refute this claim.

         Castro was convicted after trial of trafficking in hydrocodone in excess of twenty-eight grams. Construing the trial evidence in the light most favorable to the State, a confidential informant working under the direct supervision of the Drug Enforcement Agency purchased 2000 hydrocodone pills from Castro at a prearranged meeting in the parking lot of a tattoo parlor for the sum of $4000. In Ground Eight of his motion, Castro alleged that his trial counsel rendered ineffective assistance because he did not call Castro's wife to testify at trial as an alibi witness. Castro states that he was prejudiced by counsel's failure because his wife was available and willing to testify at trial and, if called, would have said that she was with Castro on both the day the drug transaction was negotiated and then on the day that it was consummated and that Castro was not present for either event, as she and Castro "never left each other's company." Castro averred that if trial counsel had called his wife to testify, the jury "would have found her to be more credible than the paid felon [confidential] informant who (testified against Castro and) was being compensated for his role in [Castro's] arrest, " and the jury would have found him not guilty.

         In summarily denying this claim, the postconviction court attached to its order a portion of the trial transcript where the following exchange occurred:

THE COURT: Mr. Castro, I ask every defendant at this point in time: Are you satisfied with the services that you received from [trial counsel]?
[THE DEFENDANT:[1] Yes.
THE COURT: Is there anything that you told him to do and he didn't do?
THE DEFENDANT: No, Sir.

         In the denial order, the court found that this dialogue sufficiently "refute[d] [Castro's] claim that he wanted counsel to call his wife as an alibi witness."

         "The failure to call a witness can constitute ineffective assistance of counsel if the witness might be able to cast doubt on the defendant's guilt." Gutierrez v. State, 27 So.3d 192, 194 (Fla. 5th DCA 2010) (citing Ford v. State, 825 So.2d 358, 360-61 (Fla. 2002); Spellers v. State, 993 So.2d 1117, 1118 (Fla. 5th DCA 2008)). Here, Castro set forth a facially sufficient claim of ineffective assistance of counsel because he alleged the identity of the potential witness, the substance of the witness's testimony, how the omission of the testimony prejudiced him, and that the witness was available for trial. See Spellers, 993 So.2d at 1118. A defendant is entitled to an evidentiary hearing on a claim that counsel was ineffective for failing to call a witness to testify unless ...


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