JORGE LORENZO CUETO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Jorge Cueto appeals a summary denial of his Rule 3.850 postconviction motion claiming ineffective assistance of counsel. The court reverses, finding that Cueto raised a potentially meritorious claim regarding insufficient evidence for a burglary conviction (since the hotel area was open to the public) and that procedural bars should not prevent him from raising ineffective assistance claims based on errors his appellate counsel identified on direct appeal.
The court held that Cueto is not procedurally barred from raising this ineffective assistance claim despite prior direct appeal consideration, as such a bar would defeat the ends of justice. The court also held that while other convictions may have been harmless error, the burglary conviction without assault or battery was not necessarily harmless and requires an evidentiary hearing.
[1] An appellate court must reverse a summary denial of a postconviction motion unless the record conclusively shows the appellant is entitled to no relief.
[2] A conviction for burglary is legally insufficient if the premises entered were open to the public.
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“if a defendant can establish that the premises were open to the public, then this is a complete defense to the crime of burglary”
Establishes the legal principle from Miller v. State that publicly accessible areas cannot support burglary convictions
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn October 5, 1999, Cueto and a co-defendant stole a vehicle, drove to a restaurant where they robbed a customer, then proceeded to a hotel where they…
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SHEPHERD, J.
This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).
Defendant was convicted of seven crimes based on events that occurred on October 5, 1999, where defendant, Jorge Lorenzo Cueto, and a co-defendant allegedly stole a vehicle. Defendant then drove to a restaurant and robbed at least one customer. Defendant then proceeded to a hotel and robbed the hotel clerk and a hotel guest.
Defendant raises eleven points of ineffective assistance of counsel, one of which might have merit. During trial, defense counsel conceded that defendant was guilty of armed burglary without assault or battery when defendant entered the hotel and robbed the hotel clerk and guest. The evidence, however, was legally insufficient to' support a conviction for burglary because it is indisputable on the record that the premises entered during the robbery was in an area of the hotel that was open to the public. See Miller v. State, 733 So. 2d 955, 957 (Fla.1998)(holding “that if a defendant can establish that the premises were open to the public, then this is a complete defense [to the crime of burglary].”); of. Johnson v. State, 786 So. 2d 1162, 1163 (Fla.2001)(affirming Miller but permitting prosecution for defendant’s un-per-mitted entry into a non-public portion of a convenience store). Defendant raised this point on direct appeal despite the fact that for obvious reasons the error was not preserved. The State responded that the argument was waived. On that basis, we affirmed. Cueto v. State, 840 So. 2d 246 (Fla. 3d DCA 2003).
The State now argues that defendant is precluded from raising the point pursuant to an ineffective assistance claim because this issue was considered on direct appeal. See Harvey v. Dugger, 656 So. 2d 1253, 1256 (Fla.1995). Such an argument, if accepted, would procedurally bar defendant from raising a potentially meritorious claim of ineffective assistance of counsel precisely because appellate counsel identified a significant error by trial counsel and attempted to remedy it on the merits. The law abhors such a circular result. See State v. McBride, 848 So. 2d 287, 292 (Fla.2003)(“res judicata will not be invoked where it would defeat the ends of justice”).
The State additionally contends that defendant cannot show prejudice because the quality and quantity of the physical and testimonial evidence established that any error regarding the convictions was harmless beyond a reasonable doubt. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). While the evidence does indicate that potential errors regarding defendant’s robbery and petit theft charges were harmless, such is not the case for the charge of burglary without assault or battery.
Because the record now before us fails to conclusively establish that defendant is not entitled to relief, we reverse the order and remand for an evidentiary hearing or for the attachment of record excerpts conclusively establishing that defendant is not entitled to relief.
Reversed and remanded for further proceedings.
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Citator
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Johnson v. State, 3 So. 3d 412 (Fla. 3d DCA 2009)…amental error and may be raised on direct appeal. See F.B. v. State, 852 So. 2d 226 (Fla.2003). The State contends that the defendant could have, and should have, raised the issue on direct appeal. We rejected that exact argument in Cueto v. State, 937 So. 2d 144, 145-46 (Fla. 3d DCA 2006), review denied, 952 So. 2d 1189, 952 So. 2d 1191 (Fla.2007). As already stated, the Bruno decision holds that “[a]s a rule, he or she can only raise an ineffectiveness claim via a rule 3.850 motion, even if the same underl…
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Cueto v. State, 979 So. 2d 1113 (Fla. 3d DCA 2008)…ically directing the trial court either to conduct an evidentiary hearing on the issue of defense counsel’s failure to request a judgment of acquittal or to attach those portions of the record conclusively refuting Defendant’s claim. Cueto v. State, 937 So. 2d 144 (Fla. 3d DCA 2006). The trial court subsequently issued an order again denying Defendant’s motion for postconviction relief without holding an evidentiary hearing. The trial court’s order stated that after reviewing the trial transcript, specifical…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- State v. Antoine L. McBRIDE, 848 So. 2d 287 (Fla. 2003)
- Harvey v. Dugger, 656 So. 2d 1253 (Fla. 1995)
- Miller v. State, 733 So. 2d 955 (Fla. 1998)
- Johnson v. State, 786 So. 2d 1162 (Fla. 2001)