MAXIMO GORDON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Maximo Gordon appealed the summary denial of his Rule 3.850 postconviction motion claiming ineffective assistance of counsel. The Fourth District Court of Appeal affirmed the denial of most grounds but reversed and remanded two grounds for further proceedings, finding certain ineffective assistance claims were legally sufficient and required an evidentiary hearing or opportunity to amend.
The court affirmed the summary denial of twelve grounds but reversed and remanded grounds two and nine. Ground two presented a legally sufficient claim that counsel misadvised Gordon about the scope of impeachment with prior convictions under Florida law. Ground nine contained both legally sufficient claims requiring an evidentiary hearing (failure to investigate police motive) and insufficiently pleaded claims requiring leave to amend (failure to call witness, dashboard camera investigation, use of force report).
[1] A claim of ineffective assistance of counsel is legally sufficient when counsel allegedly misadvises a defendant regarding the admissibility of prior convictions, and thi…
[2] An evidentiary hearing must be held to evaluate a claim of ineffective assistance of counsel based on a failure to investigate and preserve evidence when the State argues…
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“A defendant or other witness can be impeached with evidence that he has been convicted of a crime punishable by death or prison for more than one year under the law under which he was convicted, or evidence of a conviction involving dishonesty or false statement.”
Establishes the correct legal standard for impeachment with prior convictions, which contradicted counsel's alleged advice to Gordon
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGordon was convicted of fleeing and eluding a law enforcement officer in 2011 and sentenced to 56.7 months in prison. His conviction and sentence were…
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Maximo Gordon (Gordon) appeals a circuit court order summarily denying his Florida Rule of Criminal Procedure 3.850 motion. We affirm in part and reverse and remand on two of the fourteen grounds raised.
Gordon was convicted of fleeing and eluding a law enforcement officer and sentenced in 2011 to 56.7 months in prison. This Court affirmed his conviction and sentence in Gordon v. State, 103 So.3d 231 (Fla. 4th DCA 2012). We affirm without further discussion the postconviction court’s summary denial of all of the grounds except for numbers two and nine.
In ground two, Gordon claimed ineffective assistance of counsel for affirmatively misadvising him that if he testified at trial, the prosecution could introduce the nature of his prior convictions, not just the number of them. A defendant or other witness can be impeached with evidence that he has been convicted of a crime punishable by death or prison for more than one year under the law under which he was convicted, or evidence of a conviction involving dishonesty or false statement. See § 90.610(1), Fla. Stat. (2009); Brown v. State, 787 So.2d 136, 138-39 (Fla. 4th DCA 2001). Gordon alleged that counsel’s advice was not consistent with this law. This claim was legally sufficient. We reverse the order summarily denying it and remand for attachment of portions of the record to refute it or an evidentiary hearing.
In ground nine Gordon included a claim of ineffective assistance of counsel for failure to investigate and preserve evidence to support his defense that police officers had a motive to arrest him, other than his allegedly unlawful conduct. The State argued this claim involved trial strategy. It is well-settled that an evidentiary hearing must be held to evaluate this position. See Rector v. State, 668 So.2d 1104, 1105 (Fla. 4th DCA 1996).
As for the included claim of failure to call a particular witness, the State has acknowledged that the postconviction court erred in summarily denying relief without affording Gordon leave to amend to allege, if he can do so in good faith, that the witness was actually available to testify at his trial. Spera v. State, 971 So.2d 754 (Fla.2007); Nelson v. State, 875 So.2d 579, 583-84 (Fla.2004). Gordon included other claims under this ground which were legally insufficient, including a claim of failure to conduct discovery on whether the police cruisers involved had dashboard cameras and failure to obtain a “use of force report.” Gordon is entitled to amend them too, if possible, on remand. We reverse and remand for Gordon to be afforded leave to amend ground nine and for an evidentiary hearing if the trial court concludes that any of the claims involved trial strategy.
In sum, we reverse and remand for further consideration of points two and nine consistent with this opinion. We anticipate that the trial court will allow Gordon to amend his claims within point nine, if he can, before an evidentiary hearing is held on any claims including those involving trial strategy.
Affirmed in part, reversed and remanded in part.
MAY, DAMOORGIAN and LEVINE, JJ., concur.
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Tamarick Cruz v. State, 222 So. 3d 572 (Fla. 4th DCA 2017)…ed that counsel made a strategic or tactical decision not to present this defense, or that he was never informed of an alibi witness, the trial court should have conducted an evidentiary hearing rather than summarily denying relief. Gordon v. State, 181 So. 3d 1193, 1194 (Fla. 4th DCA 2015) (citing Rector v. State, 668 So. 2d 1104, 1105 (Fla. 4th DCA 1996)). We affirm without discussion the summary denial of ground two and the denial of ground ten after an evidentiary hearing. For the reasons above, we revers…
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Olenchak v. State (Fla. 4th DCA 2020)…t the victim’s mother saw appellant washing his penis in the sink. The State argued this claim involved trial strategy by defense counsel. However, such claims ordinarily must be considered and resolved by evidentiary hearing. See Gordon v. State, 181 So. 3d 1193, 1194 (Fla. 4th DCA 2015) (citing Rector v. State, 668 So. 2d 1104, 1105 (Fla. 4th DCA 1996)). The trial court erred in summarily denying this ground. In ground eleven, the defendant claimed the cumulative effect of the previous claims. Since we…
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Nelson v. State, 875 So. 2d 579 (Fla. 2004)
- Brown v. State, 787 So. 2d 136 (Fla. 4th DCA 2001)
- Rector v. State, 668 So. 2d 1104 (Fla. 4th DCA 1996)
- Maximo Gordon v. State, 103 So. 3d 231 (Fla. 4th DCA 2012)