Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT PABLO MACIAS, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-2534 January 14, 2022 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hardee County; Michael E. Raiden, Judge. Pablo Macias, pro se. BLACK, Judge. Pablo Macias appeals from the summary denial of his timely motion for postconviction relief. We reverse the order insofar as the postconviction court failed to attach record documents refuting two of Macias's claims and failed to address one subclaim; we also reverse for reconsideration of Macias's cumulative error claim. The order is affirmed in all other respects. In 2014, Macias was charged with kidnapping, sexual battery by threat of force likely to cause serious injury, and domestic violence by strangulation. Macias was acquitted of kidnapping but found guilty of the remaining charges following a jury trial. He was sentenced to fifteen years on the sexual battery conviction and to three years on the domestic violence conviction. This court affirmed his judgment and sentences, Macias v. State, 284 So. 3d 467 (Fla. 2d DCA 2019) (table decision), and Macias timely filed the subject Florida Rule of Criminal Procedure 3.850 motion. "We review the postconviction court's summary denial of a rule 3.850 motion de novo." Woodbury v. State, 302 So. 3d 492, 493 (Fla. 2d DCA 2020) (quoting Duncan v. State, 232 So. 3d 450, 452 (Fla. 2d DCA 2017)). "For a summary denial to be upheld on review, 'the claims must be facially invalid or conclusively refuted by the record.' " Johnson v. State, 313 So. 3d 894, 896 (Fla. 2d DCA 2021) (quoting McLin v. State, 827 So. 2d 948, 954 (Fla. 2002)). Further, "we must accept the defendant's factual 2 allegations to the extent they are not refuted by the record" where no evidentiary hearing has been held. Woodbury, 302 So. 3d at 493 (quoting McLin, 827 So. 2d at 954). In the first issue raised in his motion, Macias contended that his trial counsel provided ineffective assistance when she failed to object to irrelevant and prejudicial evidence regarding the victim's age (twenty-one) as compared to Macias's age (forty-two), particularly when the victim's age became a focus of the State's case. Macias contended that had counsel objected to the repeated reference to the victim's age and to the age difference between the victim and Macias or moved for a mistrial, relief would have been granted. Alleging that the State referenced the age difference no less than nine times, Macias identified multiple specific instances where the State focused on the age difference. In denying this claim, the postconviction court found that Macias's claim "fails to state a valid basis for relief" and that "no purpose would be served by permitting [Macias] to amend [the claim] pursuant to Spera v. State, 971 So. 2d 754 (Fla. 2007)." The court's determination that the claim fails to present a valid basis for relief is incorrect. Macias alleged both the deficiency—the failure to 3 object to irrelevant and prejudicial evidence—and how he was prejudiced thereby. See Holder v. State, 233 So. 3d 518, 519 (Fla. 2d DCA 2017). The postconviction court did not consider the admissibility of the evidence or whether the State's alleged emphasis of the victim's age became a focus of the trial, prejudicing Macias. And it failed to attach transcript excerpts or record documents refuting this claim.1 On remand, the postconviction court must consider the merits of Macias's claim; this court will not do so in the first instance. See, e.g., White v. State, 298 So. 3d 694, 695 (Fla. 2d DCA 2020); Pressley v. State, 241 So. 3d 960, 961 (Fla. 2d DCA 2018). In his second claim, Macias alleged that counsel was ineffective for failing to object to the admission of evidence of other crimes similar to those for which he was on trial. Macias cited testimony from the victim regarding Macias using a belt on her against her will and forcing her to perform oral sex against her will, in addition to testimony from another witness that she and her six- 1 Although the postconviction court presented a possible strategic reason for the State to have focused on the age difference, it did not attach any record documents supporting its theory or otherwise refuting Macias's claim. 4 or seven-year-old brother were present when Macias and the victim argued and the victim was forced to perform oral sex on Macias as punishment. The latter testimony was also referenced during the State's closing argument. Macias claims that counsel's failure to object to the admission of this unnoticed Williams2 rule evidence significantly prejudiced him, depriving him of a fair trial. The postconviction court denied this claim as refuted by the record. The court found that the State had noticed the Williams rule evidence at issue, and the court attached the notice. The notice, however, does not include evidence that a child witnessed any sex acts. And counsel did not object to that testimony at trial. Thus, while the record attachments to the postconviction court's order establish that the other Williams rule evidence identified by Macias was properly noticed and objected to via trial counsel's motions in limine, the attachments do not refute Macias's claim as to the evidence that a child witnessed the victim perform oral sex on Macias. Reversal is required to address this subissue of Macias's second claim. See Smith v. State, 170 So. 3d 124, 125 (Fla. 1st 2 Williams v. State, 110 So. 2d 654 (Fla. 1959). 5 DCA 2015) ("Because the record attachments fail to refute Appellant's Williams rule-based arguments, we must reverse and remand. Upon remand, the [postconviction] court may either grant an evidentiary hearing, or enter summary denial a second time and attach portions of the record that conclusively refute Appellant's allegations."); see also Tondreau-Leve v. State, 46 Fla. L. Weekly D2396, D2396 (Fla. 2d DCA Nov. 10, 2021) (reversing postconviction order for court's failure to address claim). Macias's fourth claim alleged that his trial counsel provided ineffective assistance when counsel failed to object to the prosecutor's improper comments during closing argument. Macias contended that the prosecutor argued facts not in evidence, bolstered a State's witness, and made "personal attacks on the defense's theory," citing specific transcript pages. In denying this claim, the postconviction court noted that although Macias identified specific pages for the alleged argument on facts not in evidence, Macias did not indicate what those facts were. The court did not grant Macias an opportunity to amend the claim to identify the specific argument; instead, the court discussed certain statements within the pages cited by Macias while ignoring 6 others. This subissue within Macias's fourth claim is facially insufficient—for failure to identify the facts not in evidence and to state how the lack of an objection prejudiced Macias. Macias must be given an opportunity to amend this subissue to state a facially sufficient claim. See Fla. R. Crim. P. 3.850(f)(3). The final claim Macias raised in his motion alleged ineffective assistance of counsel based on the cumulative effect of the errors he identified in his other claims. Because the postconviction court erred in summarily denying the three previously discussed claims, Macias's cumulative error claim must also be remanded. See Batista-Irizarry v. State, 266 So. 3d 254, 258 (Fla. 5th DCA 2019). We reverse in part the postconviction court's order summarily denying Macias's rule 3.850 motion. On remand, the court shall allow Macias sixty days to amend his claim that the prosecutor argued facts not in evidence. Affirmed in part; reversed in part; remanded. LUCAS and LABRIT, JJ., Concur. Opinion subject to revision prior to official publication. 7