final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Leon County. Angela C.
Livingston, pro se, Appellant.
Moody, Attorney General, and Trisha Meggs Pate, Assistant
Attorney General, Tallahassee, for Appellee.
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.
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
to Advise as to Maximum Penalty
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
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).
Based on Failure to Call Codefendant
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
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.