JOSE PRIETO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jose Prieto appeals the summary denial of his motion for postconviction relief challenging his racketeering plea. The court affirms the denial of most claims but reverses and remands two claims involving the voluntariness of his plea and ineffective assistance of counsel regarding an alleged exculpatory witness.
The court affirms the denial of postconviction relief as to all claims except two. The court reverses and remands regarding: (1) whether Prieto was adequately apprised of the racketeering charge despite the bilingual plea form listing only English crime names, and (2) whether counsel's failure to investigate the identified witness constitutes ineffective assistance.
[1] A defendant's understanding of the nature of the act charged is an essential component of a voluntary plea.
[2] A written plea form that lists offenses in English only does not conclusively demonstrate that a Spanish-speaking defendant understood the nature of the charges.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Such an understanding is an essential component of a voluntary plea.”
Establishes that adequate comprehension of charges is required for a valid guilty plea, particularly relevant to the language/interpretation issue.
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Join FLexlaw to unlock all legal intelligencePrieto, a Spanish speaker provided with an interpreter, pleaded guilty to racketeering and burglary charges. During plea proceedings, the interpreter …
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PER CURIAM.
Jose Prieto appeals the summary denial of his motion for posteonviction relief. We affirm the denial of posteonviction relief as to all claims contained in the motion except two which we believ'e warrant additional consideration. We reverse for further proceedings with regard to those two claims.
The first such claim involves the voluntariness of Prieto’s plea to the offense of racketeering.1 Prieto, who was provided with an interpreter during his court appearances, states that he was not adequately apprised of the elements of this offense. Instead, the.interpreter allegedly used the term “ratero,” which Prieto now translates as “burglary.” 2
In response to this claim the trial court attached to its order a written, bilingual plea form which notes the possible penalties for the numerous offenses involved including the racketeering charge. However, the names of the crimes themselves are rendered in English only. Thus the exhibit, standing alone, does not conclusively demonstrate that this Spanish-speaking defendant understood the nature of the act he was accused of committing. Such an understanding is an essential component of a voluntary plea. See Balderrama v. State, 433 So. 2d 1311 (Fla. 2d DCA 1983).
Prieto also claims to have received ineffective assistance from his court-appointed attorney. Numerous omissions are asserted, only one of which is facially sufficient. He alleges that the alleged victim of one burglary charge would have confirmed that Prieto had permission to be in her home, and thus that no crime actually took place. Though counsel was made aware of this witness she made no effort to investigate.
We recognize that determinations regarding the calling of witnesses generally fall within the discretion of counsel. Ferby v. State, 404 So. 2d 407 (Fla. 5th DCA 1981). Certainly counsel may have had valid reasons, even if informed of this alleged exculpatory witness, for recommending that Prieto go forward with the plea. However, the fact Prieto has specifically identified both a witness and the nature of her ex pected testimony distinguishes this case from those wherein summary denial of relief may have been proper. See, e.g., Ables v. State, 404 So. 2d 137 (Fla. 5th DCA 1981) (motion did not allege what prospective testimony would have been). We believe this portion of the motion presents a prima facie showing of entitlement to relief, subject to rebuttal by evidence from the record or testimony at an evidentiary hearing. Cf. Williams v. State, 447 So. 2d 442 (Fla.5th DCA 1984).
After remand the trial court should reexamine the files and records to ascertain whether any portion thereof conclusively refutes the two claims herein discussed. If the court so finds, the court may again deny the motion, attaching to its order those portions of the record relied upon for that determination. Otherwise, an evidentiary hearing most likely will be necessary. In the event Prieto prevails at any such hearing, he should be permitted to withdraw his' plea to racketeering and/or one count of burglary.
Affirmed in part, reversed in part, and remanded with instructions.
FRANK, A.C.J., and PATTERSON and ALTENBERND, JJ., concur. . § 895.03(3), Fla.Stat. (1985).
. According to one reference the word ratero, when used as an adjective, may have several meanings including "thieving" and “despicable.” it used as a noun it connotes a "petty thief” or "pickpocket,” much like the similar noun ratería ("petty thieving, pilfering; baseness”). Gooch & Garcia de Paredes, Cassell’s Spanish Dictionary.
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Citator
Cited By (11 total)
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Loren v. State, 601 So. 2d 271 (Fla. 1st DCA 1992)…effective assistance of counsel. Majewski v. State, 487 So. 2d 32 (Fla. 1st DCA 1986) (allegation that defense counsel failed to interview or call alibi witnesses sufficiently alleged ineffective assistance of counsel claim). Accord Prieto v. State, 573 So. 2d 398 (Fla. 2d DCA 1991); Gaines v. Hopper, 575 F. 2d 1147 (5th Cir.1978). Thus, once an effectiveness claim is made, a particular decision not to investigate must be directly assessed for reasonableness. Squires, 558 So. 2d at 403 (quoting Strickland). […
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Honors v. State, 752 So. 2d 1234 (Fla. 2d DCA 2000)…s court has recognized that the failure to investigate or call an exculpatory witness “presents a prima facie showing of entitlement to relief, subject to rebuttal by evidence from the record or testimony at an evidentiary hearing.” Prieto v. State, 573 So. 2d 398, 399 (Fla. 2d DCA 1991) (reversing summary denial of motion for postconviction relief). Furthermore, “arguing [a] defense in opening, and presenting no evidence to support the defense during the trial, constitutes ineffective assistance of counsel.”…
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Lolita Barthel v. State, 882 So. 2d 1054 (Fla. 2d DCA 2004)…determine if Barthel presented a facially sufficient claim for relief. In doing so, we relied on our prior opinions in Neal v. State, 854 So. 2d 666, 669 (Fla. 2d DCA 2003), Odom v. State, 770 So. 2d 195, 197 (Fla. 2d DCA 2000), and Prieto v. State, 573 So. 2d 398, 899-400 (Fla. 2d DCA 1991). After our original opinion issued but before issuance of the mandate pending the State’s motion for rehearing, our supreme court’s decision in Nelson v. State, 875 So. 2d 579 (Fla.2004), issued and became final. - The N…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ferby v. State, 404 So. 2d 407 (Fla. 5th DCA 1981)
- Ables v. State, 404 So. 2d 137 (Fla. 5th DCA 1981)
- Williams v. State, 447 So. 2d 442 (Fla. 5th DCA 1984)
- Balderrama v. State, 433 So. 2d 1311 (Fla. 2d DCA 1983)