SILVIO ANDRES PADILLA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in denying the motion for postconviction relief as successive, and that the defendant is entitled to an evidentiary hearing on his claim of an exculpatory witness.
Silvio Andres Padilla appealed an order denying his motion for postconviction relief. The trial court denied the motion as successive, finding a prior…
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PER CURIAM.
Silvio Andres Padilla appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We remand for further proceedings.
The trial court denied the instant motion as being successive. We conclude that the court misapprehended the state of the record. It is true that defendant-appellant Padilla had filed a previous pro se motion entitled “Amendment Information Pro-Se (Motion).” Because this pro se motion was filed after conviction but prior to sentencing, it would be properly viewed either as a pro se motion for new trial or a premature motion for postconviction relief. See Daniels v. State, 712 So. 2d 765 (Fla.1998). Thus, we respectfully disagree with the trial court’s conclusion that the instant motion was impermissibly successive. We therefore remand for further proceedings.
On remand, the defendant is entitled to an evidentiary hearing on his claim that the aunt of the victim, Urania Alvarado, was a witness whose testimony would have exculpated the defendant. The defendant claims that he was at all times within the sight of Ms. Alvarado who would testify that the incident of sexual battery on the minor victim did not take place. We express no view on the merits of this claim, but say only that the defendant is entitled to an evidentiary hearing on it.
The defense concedes that the double jeopardy claims are without merit and need not be considered on remand.
Regarding the defendant’s remaining claims, the trial court may again deny the motion summarily if the record conclusively refutes the defendant’s claims, or alternatively must conduct a hearing. See Lasprilla v. State, 857 So. 2d 1011 (Fla. 3d DCA 2003).
Reversed and remanded for further proceedings consistent herewith.
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Silvio Andres Padilla v. State, 905 So. 2d 217 (Fla. 3d DCA 2005)…llateral estoppel. Additionally, we note that when the defendant raised his double jeopardy claims in his January 11, 2002 Rule 3.850 motion, his attorney conceded that the defendant’s double jeopardy claims were without merit. See Padilla v. State, 861 So. 2d 1278, 1279 (Fla. 3d DCA 2003). We therefore affirm the trial court’s order denying the defendant’s motion to correct illegal sentence on the grounds raised in his December 14, 2004 motion to correct illegal sentence. In denying the defendant’s motion on…
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Holmes v. State, 870 So. 2d 919 (Fla. 3d DCA 2004)…, the court may summarily deny these claims if they are conclusively refuted by the record, and attach those portions of the record to its order, or grant defendant an evidentiary hearing. Peede v. State, 748 So. 2d 253 (Fla.1999); Padilla v. State, 861 So. 2d 1278 (Fla. 3d DCA 2003); Lasprilla v. State, 857 So. 2d 1011 (Fla. 3d DCA 2003). Reversed and remanded.…
Authorities Cited
- Daniels v. State, 712 So. 2d 765 (Fla. 1998)
- Lasprilla v. State, 857 So. 2d 1011 (Fla. 3d DCA 2003)