PAULINO GARCIA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Paulino Garcia appealed the summary denial of his postconviction motion claiming ineffective assistance of counsel. The court affirmed the denial of his first claim regarding counsel's statements in opening and closing but reversed and remanded on his second claim that counsel was ineffective for presenting no defense at trial.
The court affirmed the denial of claim 1, finding counsel's statements could not reasonably be read as an admission of guilt to the conspiracy charge. The court reversed as to claim 2, holding the trial transcript was insufficient to conclusively rebut Garcia's claim that counsel was ineffective for advising him not to testify without showing a strategic basis or addressing prejudice.
[1] A defendant's postconviction claim of ineffective assistance of counsel for failing to present a defense is not conclusively refuted by a trial transcript showing only th…
[2] When a postconviction court denies a claim based on the trial record, factual assertions in the defendant's claim must be accepted as true to the extent the record does n…
Previewing 2 of 4 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“Here, counsel's statements cannot reasonably be read as an admission of guilt to the conspiracy charge.”
The court's holding that counsel's opening and closing statements did not constitute ineffective assistance for admitting guilt.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGarcia was convicted by jury of conspiracy to traffic in methamphetamine and sentenced to fifteen years in prison. The conviction and sentence were af…
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PER CURIAM.
Paulino Garcia appeals the summary denial of his motion for postconviction relief. See Fla. R.Crim. P. 3.850. A jury convicted Mr. Garcia of conspiracy to traffic in methamphetamine. The trial court sentenced him to a fifteen-year prison term. We affirmed the conviction and sentence on direct appeal. See Garcia v. State, 939 So. 2d 102 (Fla. 2d DCA 2006) (table decision).
Mr. Garcia’s motion raised two claims: (1) trial counsel was ineffective for conceding guilt in opening statement and in closing argument, and (2) trial counsel was ineffective for failing to present any defense at trial. We affirm the postconviction court’s order as to claim 1. Here, counsel’s statements cannot reasonably be read as an admission of guilt to the conspiracy charge. We are compelled, however, to reverse as to claim 2.
At trial, Mr. Garcia did not testify and presented no witnesses on his behalf. The postconviction court treated claim 2 as one alleging that trial counsel was ineffective for advising Mr. Garcia not to testify. The trial transcript reflects only that Mr. Garcia, after consultation with counsel, waived his right to testify, not that he waived his right to a defense. Therefore, the transcript is insufficient to rebut conclusively Mr. Garcia’s claim. Mr. Garcia contends that his testimony was essential to prove that he did not participate in illegal drug transactions. See Calderon v. State, 840 So. 2d 427, 428 (Fla. 2d DCA 2003). To the extent the record does not refute these factual assertions, we must accept them as true. See Foster v. State, 810 So. 2d 910, 914 (Fla.2002); Trevino v. State, 980 So. 2d 517, 520 (Fla. 2d DCA 2007).
The record excerpts attached to the postconviction court’s order indeed suggest that trial counsel advised Mr. Garcia not to testify. We see nothing, however, indicating a supporting or strategic basis for that advice. Nor can we assess whether Mr. Garcia suffered prejudice as a result of the alleged misadvice. Thus, we reverse as to claim 2. On remand, the postconviction court shall attach portions of the record that conclusively refute the claim or, if the record does not refute the claim, afford Mr. Garcia an evidentiary hearing. Affirmed in part, reversed in part, and remanded.
DAVIS, VILLANTI, and LaROSE, JJ., Concur.
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Citator
Cited By
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Paulino Garcia v. State, 10 So. 3d 1208 (Fla. 2d DCA 2009)…Paulino Garcia challenges the order of the postconviction court summarily denying ground two of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. This is the second time Garcia’s motion is before this court. In Garcia v. State, 981 So. 2d 1263 (Fla. 2d DCA 2008), we reversed the summary denial of ground two of Garcia’s motion and remanded with directions to the postconviction court to attach those portions of the record conclusively refuting the claim or, if the record does not refute the…
Authorities Cited
- Foster v. State, 810 So. 2d 910 (Fla. 2002)
- Otneil Bolanos Calderon v. State, 840 So. 2d 427 (Fla. 2d DCA 2003)
- Trevino v. State, 980 So. 2d 517 (Fla. 2d DCA 2007)