Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT DANNY ROBLEDO, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D22-575 April 19, 2023 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Manatee County; Gilbert A. Smith, Jr., Judge. Deana K. Marshall of Law Office of Deana K. Marshall, P.A., Riverview, for Appellant. ROTHSTEIN-YOUAKIM, Judge. A jury convicted Danny Robledo of second-degree murder with a firearm, and he was sentenced to life imprisonment. Robledo now appeals the final order summarily denying his amended motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We reverse the postconviction court's order denying relief with respect to ground four to the extent that Robledo claimed that his trial counsel had been ineffective in failing to call Cesar Perez as a witness and also with respect to grounds six and seven. In all other respects, we affirm without further comment. In ground four, Robledo alleged that trial counsel had been ineffective in failing to investigate and call several witnesses who had been present at the time of the offense, including Perez. Robledo asserted that Perez would have testified that at the time of the shooting, Perez, Robledo, and several others had been "chilling" outside; that Robledo had not possessed any type of firearm; that Robledo had not been involved in an argument with the victim or any other residents at the victim's home; that Robledo had not shot anyone; and that Robledo had run into his sister's duplex after being struck in the ankle by a stray bullet. The postconviction court stated, however, that "[b]ecause there appears to be a complete lack of evidence that Mr. Perez was present or knew anything about the shooting, the [c]ourt cannot find that Defendant's counsel was ineffective for failing to speculate that Mr. Perez knew anything about this case." At the pleading stage, a defendant need only raise a facially and legally sufficient claim in a rule 3.850 motion. All facts alleged must be taken as true unless they are refuted by the record. A legally and facially sufficient claim cannot be summarily denied unless it is conclusively refuted by portions of the trial court record attached to the postconviction court's order. See Fla. R. Crim. P. 3.850(f)(4); Bolduc v. State, 279 So. 3d 768, 769 (Fla. 2d DCA 2019). Robledo's claim with respect to Perez was facially sufficient because Robledo identified the witness, stated what the witness's testimony would have been, explained how that testimony would have affected the outcome of the proceedings, alleged that the witness had been available to testify, and alleged that trial counsel had been aware of the witness. See Hanania v. State, 264 So. 3d 317, 325 (Fla. 2d DCA 2019). Taking Robledo's allegations as true, trial counsel had not needed to speculate 2 whether Perez knew anything about the case—Robledo asserted what Perez had known and asserted further that trial counsel had known of Perez. In addition, the claim was not refuted by the portions of the record attached to the postconviction court's order. To the contrary, one of the attachments was a report written by one of the responding officers that identified Perez as a possible witness to the shooting. We therefore reverse and remand for further consideration of ground four to the extent that the court must either attach portions of the trial record that refute Robledo's claim regarding Perez or hold an evidentiary hearing on that claim. In ground six, Robledo argued that trial counsel had been ineffective in failing to have a gunshot residue (GSR) kit containing a sample from his hands tested by either the Florida Department of Law Enforcement or an independent laboratory. Robledo asserted that had the kit been tested, the result would have been negative for GSR. The postconviction court denied the claim as speculative. Robledo, however, did not assert that the GSR test result might have been negative—he definitively asserted that it would have been negative. Therefore, the claim was not speculative. Compare McLean v. State, 147 So. 3d 504, 512 (Fla. 2014) ("McLean's allegations that the tape recording was of potential exculpatory or impeaching value to his case is completely speculative, and postconviction relief cannot be based on mere speculation." (emphasis added)), with Happel v. State, 330 So. 3d 122, 123 (Fla. 2d DCA 2021) (holding that the postconviction court erred in denying as speculative the movant's claim that trial counsel should have checked a surveillance video that would have supported the movant's contention that he had not fired a gun at a law enforcement 3 officer). Additionally, nothing in the portions of the record attached to the court's order conclusively refutes Robledo's claim that the test result would have been negative. Accordingly, we reverse and remand for further consideration of ground six to the extent that the court must either attach portions of the trial court record that refute Robledo's claim or hold an evidentiary hearing on that claim. Finally, because we reverse with respect to more than one claim of ineffective assistance of trial counsel, the postconviction court must also reconsider Robledo's claim of cumulative error. See Flint v. State, 84 So. 3d 469, 471 (Fla. 2d DCA 2012). Accordingly, we reverse with respect to the denial of ground seven. Affirmed in part, reversed in part, and remanded with directions. BLACK and LUCAS, JJ., Concur. Opinion subject to revision prior to official publication. 4