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Livingston v. State

Florida Court of Appeals, First District

August 9, 2019

Omar Livingston, Appellant,
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Leon County. Angela C. Dempsey, Judge.

          Omar Livingston, pro se, Appellant.

          Ashley Moody, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.

          WOLF, J.

         Omar Livingston appeals a final order summarily denying his Florida Rule of Criminal Procedure 3.850 motion in which he raised multiple claims attacking his judgment and sentence based on ineffective assistance of counsel. We agree with appellant that the trial court erred in summarily denying his claim that counsel was ineffective for misadvising him concerning the maximum penalty he faced and for failing to call his codefendant as a witness. Accordingly, we reverse and remand for further proceedings. We, however, have concerns regarding the present requirements of alleging facially sufficient claims pursuant to rule 3.850, Florida Rules of Criminal Procedure, and therefore certify a question of great public importance.


         A jury found appellant guilty of being a convicted felon in possession of a firearm, and this court affirmed his judgment and sentence. The charge arose from the traffic stop of a vehicle driven by appellant's brother, Dominic Livingston. Appellant was a passenger in the vehicle, and the arresting officer testified that he saw appellant leaning towards the glove compartment immediately after the stop. Officers found a firearm in the glove compartment, and the State charged both occupants with offenses related to firearm possession. Dominic's charges were pending at the time of appellant's trial.

         Failure to Advise as to Maximum Penalty

         Appellant argues in his rule 3.850 motion that he would have accepted the State's plea offer if he had been correctly advised by his attorney concerning the maximum penalty he faced. He alleged the prosecutor made an offer on the record prior to trial, the court would have accepted the offer, and the sentence would have been less severe than the sentence the trial court ultimately imposed. The postconviction court attached a portion of the jury selection transcript to its order summarily denying appellant's 3.850 motion, showing the trial court informed appellant the lowest permissible sentence under the law was 69 months prison with a 3-year mandatory minimum.

         However, the record attachment contains no information that conclusively refutes appellant's assertion that his attorney provided him incorrect legal advice as to the maximum legal sentence. Therefore, we must reverse and remand the summary denial with instructions for the court to attach portions of the record that conclusively refute appellant's claim or to hold an evidentiary hearing on this ground. See Bush v. State, 257 So.3d 633 (Fla. 1st DCA 2018) (holding the court erred in summarily denying a defendant's 3.850 motion because the record attachments did not conclusively refute the defendant's assertion that his defense counsel failed to correctly advise him regarding the maximum penalties associated with his charges).

         Ineffectiveness Based on Failure to Call Codefendant

         In his 3.850 motion, appellant alleged that his attorney was also ineffective for failing to call his brother Dominic, the driver of the vehicle, as a witness. Appellant asserts that Dominic would have testified that appellant had no knowledge of the firearm, and this testimony would have called into question the arresting officer's testimony and may have resulted in appellant's acquittal. The postconviction court found that appellant's claim was legally insufficient only because Dominic was a codefendant who was also charged with the same offense. Therefore, the court reasoned that he would not have testified in such a way as to incriminate himself.

         "[A] facially sufficient motion alleging ineffective assistance of counsel for failure to investigate and to interview a potential witness should set forth the following: '(1) the identity of the prospective witness; (2) the substance of the witness' testimony; and (3) an explanation as to how the omission of this evidence prejudiced the outcome of the trial.'" Rangel-Pardo v. State, 879 So.2d 19, 20 (Fla. 2d DCA 2004) (quoting Robinson v. ...

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