NELSON RIVERA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the record did not conclusively refute the defendant's claim of ineffective assistance of counsel regarding the presentation of mitigating evidence at sentencing, and that another claim was not ruled upon by the lower court.
[1] A postconviction court must conduct an evidentiary hearing on a claim of ineffective assistance of counsel unless the record conclusively refutes the claim.
[2] Record attachments are insufficient to conclusively refute a claim of ineffective assistance of counsel if they do not definitively show that the circuit court would not…
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Join FLexlaw to unlock all legal intelligenceNelson Rivera pleaded nolo contendere to unlawful sexual activity with a minor. After his plea but before sentencing, he was arrested on an outstandin…
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Nelson Rivera challenges the final order that denied his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. In his postconviction motion, Mr. Rivera asserted two claims for relief based on ineffective assistance of counsel. The postconviction court summarily denied both claims. We affirm without comment the postconviction court’s denial of claim one, but we reverse the postconviction court’s denial of claim two and remand for further proceedings.
Mr. Rivera pleaded nolo contendere to unlawful sexual activity with a minor, a violation of section 794.05(1), Florida Statutes (2002). After his plea hearing but before his scheduled sentencing hearing, Mr. Rivera was arrested on an outstanding warrant from Pennsylvania for a crime that allegedly occurred a month before his plea hearing. Mr. Rivera was adjudicated guilty of unlawful sexual activity with a minor and sentenced to ten years’ imprisonment.
In claim two, Mr. Rivera alleged that his trial counsel provided ineffective assistance *1159because counsel did not present mitigating evidence during his sentencing hearing. Mr. Rivera’s claim addressed two kinds of mitigating evidence: (1) the minor victim’s willing participation in the sexual activity and (2) the circumstances of his arrest between the time of the plea hearing and the scheduled sentencing hearing. In response to Mr. Rivera’s claim, the State acknowledged that Mr. Rivera’s trial counsel could have presented evidence of the victim’s consent to the sexual activity for mitigation purposes.1 In addition, the State conceded that an evidentiary hearing was necessary as to claim two because the court reporter present at Mr. Rivera’s sentencing hearing subsequently moved to Mississippi and, as a result of Hurricane Katrina, lost all of the records of Mr. Rivera’s sentencing hearing.
Nevertheless, the postconviction court denied claim two as it relates to counsel’s alleged failure to present evidence that the victim had consented to the sexual activity, finding that the record conclusively refuted Mr. Rivera’s claim. The postconviction court noted that Mr. Rivera mentioned during the plea hearing that the victim had lied about her age, but “the [c]ourt was never considering a downward departure and once [Mr. Rivera] was arrested on unrelated charges while awaiting sentencing, ‘all deals were off.’ ” However, the transcript of the plea hearing does not conclusively indicate that the circuit court would not have considered a downward departure. In fact, sentencing issues were not discussed. The transcript of the plea hearing also indicates that Mr. Rivera entered an open plea and that no plea agreement or negotiated sentence existed. Thus the record attachments are insufficient to conclusively refute Mr. Rivera’s claim.
Accordingly, we reverse the order summarily denying Mr. Rivera’s motion and remand for the postconviction court to reconsider this claim. Unless the record conclusively refutes Mr. Rivera’s claim, the postconviction court shall conduct an evi-dentiary hearing. If the postconviction court again summarily denies Mr. Rivera’s claim, it must attach portions of the record that conclusively refute this claim. See Chandler v. State, 843 So.2d 1046, 1047 (Fla. 2d DCA 2003).
We note that the postconviction court did not rule on Mr. Rivera’s claim that his trial counsel was ineffective for failing to explain the circumstances of his arrest. Therefore, we also remand this case to allow the postconviction court to address this issue that was not the subject of a ruling. See Calzada v. State, 934 So.2d 541, 542 (Fla. 3d DCA 2006).
Affirmed in part, reversed in part, and remanded with instructions.
CASANUEVA and KHOUZAM, JJ., Concur.
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Caballero v. State, 132 So. 3d 369 (Fla. 4th DCA 2014)…dhood of physical and sexual abuse, but counsel never provided an expert to examine or interview him. As noted, failure to present available mitigating evidence at a sentencing hearing can be a sufficient postconviction claim. E.g., Rivera v. State, 1 So. 3d 1158 (Fla. 2d DCA 2009) (reversing summary denial of claim that counsel failed to present mitigating evidence that victim consented to sexual activity, and circumstances of defendant’s arrest between plea and sentencing hearings); c.f. Lightbourne v. Sta…
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Pressey v. State, 19 So. 3d 1092 (Fla. 4th DCA 2009)…r. However, review of Pres-sey’s motion reveals that his allegations are deficient with respect to his claim that counsel was ineffective during the sentencing hearing. See generally Ferrell v. State, 918 So. 2d 163, 172 (Fla.2005); Rivera v. State, 1 So. 3d 1158 (Fla. '2d DCA 2009). Consequently, the trial court’s summary denial should have been without prejudice to Pressey’s right to file an amended motion. Spera v. State, 971 So. 2d 754 (Fla.2007). Therefore, we reverse the summary denial of Pressey’s cla…
Authorities Cited
- State v. Rife, 789 So. 2d 288 (Fla. 2001)
- Jovan Feliciano v. State, 937 So. 2d 818 (Fla. 1st DCA 2006)
- Chandler v. State, 843 So. 2d 1046 (Fla. 2d DCA 2003)
- Kermit L. Miller v. State, 934 So. 2d 541 (Fla. 3d DCA 2006)
- Still v. State, 866 So. 2d 1270 (Fla. 5th DCA 2004)
- Hodge v. State, 866 So. 2d 1270 (Fla. 4th DCA 2004)