Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT FRANK GUZMAN, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D20-694 November 17, 2021 Appeal from the Circuit Court for Pasco County; Kimberly Campbell, Judge. Marie-Louise Samuels Parmer of Parmer DeLiberato, P.A., Tampa, for Appellant. Ashley Moody, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa, for Appellee. CASANUEVA, Judge. Frank Guzman raises three claims of circuit court error arising from the summary denial of his First Amended Second or Successive [Florida Rule of Criminal Procedure] 3.850 Motion. We conclude that the circuit court erred in denying Mr. Guzman's second claim without conducting an evidentiary hearing. We affirm in all other respects. The crux of Mr. Guzman's successive motion is that each of his accusers has indicated in a sworn affidavit that their respective trial testimony was false, that is, perjured. More specifically, each now swears that Mr. Guzman, their grandfather, did nothing wrong. In 1963, because of an "impending postconviction crisis" caused by Gideon v. Wainwright, 372 U.S. 335 (1963), Florida Rule of Criminal Procedure 3.850 was enacted. Essentially, the new rule "transferred consideration of . . . traditional habeas [corpus] claims from the court having territorial jurisdiction over the prison where the prisoner is detained to the jurisdiction of the sentencing court." Baker v. State, 878 So. 2d 1236, 1239 (Fla. 2004). Here, the case turns upon the language of the rule and the standard of review. A second or successive motion is classified by the rule as "an extraordinary pleading." Fla. R. Crim. P. 3.850(h)(2). As such, the rule provides that the motion is subject to dismissal should the trial court conclude "that it fails to allege new or different grounds for 2 relief and the prior determination was on the merits." Id. Where the claim is legally insufficient or its allegations are conclusively refuted by the record, the claim may be summarily denied. Taylor v. State, 3 So. 3d 989, 999 (Fla. 2009) (citing McLin v. State, 827 So. 2d 948, 954 (Fla. 2002)). The "decision whether to grant an evidentiary hearing . . . is ultimately based on written materials before the court." Nordelo v. State, 93 So. 3d 178, 184 (Fla. 2012). Thus, the "ruling is tantamount to a pure question of law, subject to de novo review." Id.; see DeJesus v. State, 302 So. 3d 472, 474 (Fla. 2d DCA 2020). Further, when the circuit court fails to hold an evidentiary hearing, this court and the circuit court must accept the motion's factual allegations as true unless the record refutes them. McKinnon v. State, 221 So. 3d 1239, 1240 (Fla. 5th DCA 2017). As this court recognized in DeJesus, "an evidentiary hearing is the general rule rather than the exception." 302 So. 3d at 476 (quoting Floyd v. State, 202 So. 3d 137, 140 (Fla. 2d DCA 2016)). Finally, to uphold a circuit court's summary denial of a rule 3.850 claim, the "claim[] must be either facially invalid or conclusively refuted by the record." Barco v. State, 324 So. 3d 606, 3 606 (Fla. 2d DCA 2021) (quoting Peede v. State, 748 So. 2d 253, 257 (Fla. 1999)). This court has succinctly summarized the process as consisting of two basic steps: [First], [w]hen reviewing the summary denial of a motion for postconviction relief, this court applies de novo review and "must accept the movant's factual allegations as true to the extent that they are not refuted by the record." Jennings v. State, 123 So. 3d 1101, 1121 (Fla. 2013). [Second], [s]ince there was no evidentiary hearing, the court "must examine each claim to determine if it is legally sufficient, and, if so, whether the record refutes it." Allen v. State, 854 So. 2d 1255, 1258 (Fla. 2003). Martin v. State, 205 So. 3d 811, 812 (Fla. 2d DCA 2016). To obtain a new trial based upon newly discovered evidence Mr. Guzman must satisfy two requirements. First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. Taylor v. State, 260 So. 3d 151, 158 (Fla. 2018) (quoting Preston v. State, 970 So. 2d 789, 797 (Fla. 2007)). Because this is a successive motion, we necessarily review the initial motion and its dispositive order. The initial motion asserted, 4 as did its successor, newly discovered evidence based upon the victims' recantation of their respective trial testimony. Mr. Guzman contended that the newly discovered evidence warranted a new trial. The State responded by directing the circuit court to note that the accompanying statements filed by each child were unsworn. Additionally, the State requested, and the circuit court convened, a prehearing argument and evidentiary status check. Following both proceedings, the circuit court denied the motion for postconviction relief. In doing so, it struck an order entered by a predecessor judge affording Mr. Guzman an evidentiary hearing. In denying the motion for postconviction relief, the circuit court relied upon the trial testimony of the victims. At trial, each victim admitted to a prior inconsistent statement given to law enforcement but testified that they lied to law enforcement and were telling the truth at trial. Important to the resolution of this case are two observations. First, as no evidentiary hearing was held, the circuit court did not hear the testimony of each witness and could not pass upon the credibility of either. Second, at trial each victim testified that Mr. 5 Guzman was, in effect, guilty. Here, each statement in support of the postconviction motion indicated that Mr. Guzman was, in fact, innocent and that the testimony to the contrary was false, that is, perjured. We now address the order denying the successive motion. Because the circuit court did not hold an evidentiary hearing, its review was limited to the documents before it. Mr. Guzman's motion asserted his innocence because the trial testimony was false and there was no other inculpatory evidence. Recall that the only evidence before the circuit court was the record of the trial proceeding and the affidavits accompanying the successive motion. The trial record demonstrates that during cross-examination, each child admitted to making a prior statement that Mr. Guzman did nothing wrong and testified that this prior statement was false. In their affidavits, each child admitted that Mr. Guzman had done nothing wrong. At trial, each also testified under oath that he had committed the acts at issue and the prior statement was false. On the record before us and upon the issues previously before the circuit court, we are unable to conclude that Mr. Guzman's successive motion may be denied because the record conclusively 6 refutes his allegations. Rather, the record is not conclusive, and in order to properly determine whether relief is warranted, an evidentiary hearing is required. At such a hearing the circuit court will be in a position to evaluate the testimony of each child and make a credibility finding as to each. In that way, it will be in a position to properly analyze the legal import of the recanted testimony and properly apply the rules that pertain to such testimony. We hold that the circuit court erred in not affording Mr. Guzman an evidentiary hearing and we remand with instructions to do so. Affirmed in part, reversed in part, and remanded with directions. LUCAS and ATKINSON, JJ., Concur. Opinion subject to revision prior to official publication. 7