Ruiz v. State

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          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 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

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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

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Ten should be reversed and the matter remanded for attachment of the portions of the record conclusively refuting the claim or for ...