Page 1135
An
Appeal under Florida Rule of Appellate Procedure 9.141(b)(2)
from the Circuit Court for Miami-Dade County, Cristina
Miranda, Judge. Lower Tribunal No. 07-22156B
Daniel
J. Tibbitt, P.A., and Daniel Tibbitt, Miami, 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 Ruizs 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 Ruizs claims
alleging ineffective assistance of trial counsel. Ruiz
appeals this June 20, 2018 order. The State concedes that all
of Ruizs 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 Ruizs amended rule 3.850 motion
because the "trial courts order did not specifically
address any of these claims in a manner from which we [could]
determine the lower courts 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
Page 1136
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 Ruizs claims were
conclusively refuted by the record and entered the June 20,
2018 order on review summarily denying Ruizs 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 Ruizs pro se
rule 3.850 motion and Ruizs 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 appellants
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 counsels
failure to properly cross-examine States witness Maridelmis
Orozco), referring generally to trial counsels purported
trial strategy in cross-examining the witness. Acknowledging
that claim Ten is facially sufficient, the State concedes
that the summary denial of claim
Page 1137
Ten should be reversed and the matter remanded for attachment
of the portions of the record conclusively refuting the claim
or for ...