ROBERT FORTE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Forte appealed the denial of his Rule 3.850 postconviction relief motion challenging his convictions for robbery, carjacking, and related offenses. The appellate court found merit in two of nine claims and reversed the summary denial of those claims, finding the postconviction court improperly relied on evidence outside the record.
The court reversed the summary denial of the two ineffectiveness claims, holding that the postconviction court erred by relying on the codefendant's hearing transcript, which was not part of the official trial record. The court remanded for the postconviction court to either attach properly-before-it documents conclusively refuting Forte's allegations or hold an evidentiary hearing.
[1] A postconviction court cannot rely on a transcript from a codefendant's separate proceeding to summarily deny a defendant's claims.
[2] The phrase "files and records" in the context of postconviction relief excludes matters outside the official court record.
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Join FLexlaw to unlock all legal intelligence“Although the postconviction court attached the transcript from the codefendant's hearing to the order denying Forte's claims, that transcript was not part of Forte's record and the postconviction court erred in relying on it to deny the claims.”
Establishes that the postconviction court cannot rely on evidence outside the official trial record when summarily denying postconviction relief claims.
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Join FLexlaw to unlock all legal intelligenceForte was convicted of robbery with a firearm, carjacking with a firearm, carrying a concealed firearm, possession of a firearm on school property, fl…
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Robert Forte challenges the denial of his motion , for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Of the nine claims Forte raises on .appeal, we find merit in. two.
Forte was found guilty of robbery with a firearm, carjacking with'-a firearm, carrying a concealed firearm,-, possession of a firearm on school property, fleeing and attempting to elude a police officer, and obstructing or opposing an officer without violence. He was sentenced to life in prison with a ten-year minimum mandatory term on the robbery and carjacking convictions, to ten years as a habitual felony offender on the carrying, possession, and *1044fleeing convictions, and to time served on the obstructing conviction. This court affirmed his judgment and sentences. Forte v. State, 65 So.3d 521 (Fla. 2d DCA 2011) (table decision).
In his first and fifth issues Forte argued that his trial counsel was ineffective for failing to request a continuance in order to depose Forte’s codefendant and in failing to call Forte’s codefendant as a witness at trial. The postconviction court ordered a response from the State. The State attached the hearing transcript from the co-defendant’s motion for postconviction relief where Forte’s codefendant testified that on the night in question he blacked out and did not recall the events.
Although the postconviction court attached the transcript from the codefen-dant’s hearing to the order denying Forte’s claims, that transcript was not part of Forte’s record and the postconviction court erred in relying on it to deny the claims. See Ciambrone v. State, 128 So.3d 227, 232 (Fla. 2d DCA 2013) (“[T]he post-conviction court could not rely on the transcript of Joseph Ciambrone’s trial to summarily deny relief [in Heather Ciambrone’s case].”); Cintron v. State, 504 So.2d 795, 796 (Fla. 2d DCA 1987) (holding that the phrase “files and records” as used in rule 3.850 excludes matters outside the official court record); see also Maddry v. State, 649 So.2d 334, 335 (Fla. 1st DCA 1995) (“The affidavit of a single witness, which was not a part of the record at the time the motion was filed, cannot be employed to refute Maddry’s claims of ineffective assistance of counsel, or to obviate the necessity of an evidentiary hearing.”); Havis v. State, 555 So.2d 417, 418 (Fla. 1st DCA 1989) (“The phrase ‘files and records’ does not include factual affidavits presented to the court after the motion has been filed. Rather, this affidavit raises a new factual matter which must be considered at an evidentiary hearing on the motion.”).
The State argues that because the code-fendant had not been sentenced when Forte proceeded to trial the codefendant could have invoked his Fifth Amendment right. However, nothing in the limited record before us supports the State’s contention. We reverse the summary denial of claims one and five and remand for the postconviction court to either attach documents that are properly before it and that conclusively refute Forte’s allegations or hold an evidentiary hearing on these issues. See Ciambrone, 128 So.3d at 232. We affirm without comment the denial of Forte’s remaining claims.
Affirmed in part; reversed in part; remanded.
KHOUZAM and SALARIO, JJ., concur.
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Duncan v. State, 232 So. 3d 450 (Fla. 2d DCA 2017)…upon other scientific articles attached to the State’s response to deny Mr. Duncan’s claim. Such reliance was error because the exhibits were neither a part of the original record nor properly admitted at an evidentiary hearing. See Forte v. State, 189 So. 3d 1043, 1044 (Fla. 2d DCA 2016) (holding that the post-conviction court erred in relying upon the transcript from a co-defendant’s evidentia-ry' héaring, which was attached to the State’s response, to summarily deny the defendant’s rule 3.850 motion becaus…
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Black v. State, 230 So. 3d 166 (Fla. 5th DCA 2017)…d 1239, 1240 (Fla. 5th DCA 2017) (citation omitted). First, although the post-conviction court concluded that Snead would not have testified because of self-incrimination concerns, nothing in the record supports this conclusion. See Forte v. State, 189 So. 3d 1043, 1044 (Fla. 2d DCA 2016) (“The State argues that because the codefendant had not been sentenced when Forte proceeded to trial the codefendant could have invoked his Fifth Amendment right. However, nothing in the limited record before us supports the…
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Black v. State, 202 So. 3d 466 (Fla. 5th DCA 2016)…owever, there is nothing in the record that demonstrates Snead’s charges were pending or that Snead invoked his Fifth Amendment right against self-incrimination. See Echevarria v. State, 976 So. 2d 84, 85 (Fla. 3d DCA 2008); see also Forte v. State, 189 So. 3d 1043, 1044 (Fla. 2d DCA 2016).…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cintron v. State, 504 So. 2d 795 (Fla. 2d DCA 1987)
- Ciambrone v. State, 128 So. 3d 227 (Fla. 2d DCA 2013)
- Maddry v. State, 649 So. 2d 334 (Fla. 1st DCA 1995)
- Randall v. State, 555 So. 2d 417 (Fla. 4th DCA 1989)
- Dawson Eugene Havis v. State of Fla. & George L. Carlisle, 555 So. 2d 417 (Fla. 1st DCA 1989)