Not
final until disposition of timely filed motion for rehearing.
An
Appeal under Florida Rule of Appellate Procedure 9.141(b)(2)
from the Circuit Court for Miami-Dade County Lower Tribunal
No. 07-22156B, Cristina Miranda, Judge.
Daniel
J. Tibbitt, P.A., and Daniel Tibbitt, for appellant.
Ashley
Moody, Attorney General, and Magaly Rodriguez, Assistant
Attorney General, for appellee.
Before
SCALES, HENDON and LOBREE, JJ.
ON
PARTIAL CONFESSION OF ERROR
PER
CURIAM.
On
November 22, 2017, this Court (i) reversed, in part, an April
15, 2016 trial court order summarily denying certain
claims[1] of ineffective assistance of trial counsel
alleged in Cesar Ruiz's amended rule 3.850 postconviction
motion; and (ii) remanded for the trial court to enter an
adequate order thereon. See Ruiz v. State, 233 So.3d
1184 (Fla. 3d DCA 2017) ("Ruiz I"). On
remand, the trial court entered a June 20, 2018 order that,
once again, summarily denied Ruiz's claims alleging
ineffective assistance of trial counsel. Ruiz appeals this
June 20, 2018 order. The State concedes that all of
Ruiz's claims are facially sufficient and that reversal
is warranted for the bulk of the claims. For the following
reasons, we reverse the June 20, 2018 order and, once again,
remand for the trial court either to grant an evidentiary
hearing or, for each claim summarily denied, to set forth the
specific basis for the denial of relief, attaching as
necessary the portions of the record that conclusively show
Ruiz is not entitled to relief.
In
Ruiz I, this Court was compelled to reverse the
summary denial of claims Three, Five, Six, Ten, Thirteen,
Fourteen, Sixteen, Eighteen, Nineteen, Twenty, Twenty-One,
and grounds A and B in Ruiz's amended rule 3.850 motion
because the "trial court's order did not
specifically address any of these claims in a manner from
which we [could] determine the lower court's precise
reason for denying each claim." 233 So.3d at 1185. We,
therefore, remanded "for the trial court to, with regard
to each of the claims, either grant an evidentiary hearing,
or set forth the specific basis for the denial of relief as
to each claim attaching as necessary the portions of the
record which conclusively show Ruiz is not entitled to
relief." Id.
On
remand, the trial court concluded that Ruiz's claims were
conclusively refuted by the record and entered the June 20,
2018 order on review summarily denying Ruiz's ineffective
of assistance of trial counsel claims.[2] The trial court
denied ten of the claims - claims Three, Five, Six, Thirteen,
Fourteen, Sixteen, Eighteen, Nineteen, Twenty and ground A -
based solely on an October 5, 2015 affidavit of the assistant
public defender who represented Ruiz at trial. This affidavit
was provided to the lower court by the State, as an
attachment both to its response to Ruiz's pro se
rule 3.850 motion and Ruiz's amended rule 3.850 motion.
On this appeal, the State concedes that the trial court could
not deny any of the ten claims based solely on this
affidavit. Indeed, not only were claims Three, Five, Six,
Fourteen, Twenty and ground A not even addressed in the
affidavit, but "[a]n affidavit of counsel that was
unavailable to the trial court when the Rule 3.850 motion was
filed is not part of the 'files or record' on which
the court may solely rely to refute conclusively the
appellant's allegations pursuant to Rule 3.850(d)."
Mims v. State, 672 So.2d 662, 663 (Fla. 1st DCA
1996). We, therefore, reverse the summary denial of claims
Three, Five, Six, Thirteen, Fourteen, Sixteen, Eighteen,
Nineteen, Twenty and ground A, and remand for attachment of
the portions of the record conclusively refuting each claim
or for an evidentiary hearing.[3], [4]
The
trial court summarily denied claim Ten (trial counsel's
failure to properly cross-examine State's witness
Maridelmis Orozco), referring generally to trial
counsel's purported trial strategy in cross-examining the
witness. Acknowledging that claim Ten is facially sufficient,
the State concedes that the summary denial of claim Ten
should be reversed and the matter remanded for attachment of
the portions of the record conclusively refuting the claim or
for an evidentiary hearing. We agree.
The
June 20, 2018 order does not appear to address directly claim
Twenty-One. Acknowledging that claim Twenty-One is facially
sufficient, the State concedes that the denial of claim
Twenty-One should be reversed and the matter remanded for
attachment of the portions of the record conclusively
refuting the claim or for an evidentiary hearing. We agree.
The
June 20, 2018 order appears to deny ground B (trial
counsel's failure to object to faulty jury instructions)
on the basis that the inadequacy of jury instructions is an
issue that should be raised on direct appeal. Acknowledging
that ground B raises a facially sufficient ineffective
assistance of trial counsel claim, see Ray v. State,
176 So.3d 1010, 1012-13 (Fla. 5th DCA 2015), the State
concedes that the denial of ground B should be reversed and
the matter remanded for attachment of the portions of the
record conclusively refuting the claim or for an evidentiary
hearing. We agree.
Accordingly,
we reverse the June 20, 2018 order in its entirety and, as in
Ruiz I, we remand this matter for the trial court,
[5]
with regard to each of the claims, either to grant an
evidentiary hearing or to set forth the specific basis for
the denial of relief, attaching as necessary ...