Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JONAS TRAMELL GRIFFIN, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D22-76 August 19, 2022 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Lee County; Margaret O. Steinbeck, Judge. Jonas Tramell Griffin, pro se. SILBERMAN, Judge. Jonas Tramell Griffin appeals the postconviction court's order summarily denying his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We affirm the denial of claims one and three of Griffin's motion without comment. As to claim two, Griffin asserted that his trial counsel was ineffective for failing to discuss with him potential defenses or strategies for trial. Because the postconviction court denied relief based on unsworn statements made by Griffin's trial counsel at an earlier proceeding, we reverse and remand for an evidentiary hearing. After a jury trial, Griffin was convicted of two counts of robbery with a firearm. His convictions and sentences were affirmed by this court. See Griffin v. State, 262 So. 3d 710 (Fla. 2d DCA 2018) (table decision). He then filed his motion for postconviction relief, which the trial court summarily denied. We review the summary denial of postconviction claims de novo. Jennings v. State, 123 So. 3d 1101, 1121 (Fla. 2013). In doing so, we must accept the appellant's "factual allegations as true to the extent that they are not refuted by the record." Id. (citing Occhicone v. State, 768 So. 2d 1037, 1041 (Fla. 2000)). 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) (citing Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000)); see also Martin v. State, 205 So. 3d 811, 812 (Fla. 2d DCA 2016). 2 In denying claim two, the postconviction court noted that Griffin had made complaints about counsel during trial court proceedings and that the trial court had conducted a Nelson1 inquiry into the competency of counsel.2 The postconviction court attached to its order various documents, including the transcript of the Nelson hearing. The transcript contains trial counsel's unsworn statements as to the actions he had taken in representing Griffin. At the conclusion of the Nelson hearing, the trial court determined that Griffin had not established a basis to discharge counsel. The postconviction court specifically relied upon counsel's unsworn statements made during the Nelson hearing to deny Griffin's claim. The court concluded that counsel and Griffin had discussed strategies, defenses, and tactics and that counsel had listened to Griffin's views, assessed them, and incorporated those that were viable into the defenses. Because the postconviction 1 Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973). 2 Griffin also argues that the statements made by his counsel during the Nelson hearing concerned another case and not the case at issue. This contention is conclusively refuted by the record, and we need not address this point further. 3 court's decision was based on counsel's unsworn statements, we must reverse. Unsworn statements made by counsel cannot be considered as evidence. See Rubino v. State, 310 So. 3d 1022, 1025 (Fla. 2d DCA 2020) (citing Richardson v. State, 182 So. 3d 918, 923 (Fla. 1st DCA 2016)). It is well established that "[a]n attorney's 'unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record.' " H.K. Dev., LLC v. Greer, 32 So. 3d 178, 181 n.4 (Fla. 1st DCA 2010) (quoting Leon Shaffer Golnick Advert., Inc. v. Cedar, 423 So. 2d 1015, 1017 (Fla. 4th DCA 1982)); see also Rubino, 310 So. 3d at 1025 ("[C]ounsel's statements to Rubino during sentencing were not made under oath and therefore could not be considered evidence of what she did or did not advise Rubino with regard to accepting or rejecting the State's plea offer."); Hitt v. Homes & Land Brokers, Inc., 993 So. 2d 1162, 1166 (Fla. 2d DCA 2008) ("Unsworn statements of counsel do not establish facts."). 4 Because the postconviction court summarily denied relief based on counsel's unsworn statements, we reverse and remand for an evidentiary hearing on claim two. Affirmed in part, reversed in part, and remanded. SLEET and LUCAS, JJ., Concur. Opinion subject to revision prior to official publication. 5