Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT OREE DEANDRE WEST, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D20-1818 January 14, 2022 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County; Larry Helms, Judge. Jami L. Chalgren of Escobar & Associates, P.A., Tampa, for Appellant. Ashley Moody, Attorney General, Tallahassee, and James Aaron Hellickson, Assistant Attorney General, Tampa, for Appellee. SMITH, Judge. Oree West appeals from the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because Mr. West's claims are not conclusively refuted by the record and the postconviction court applied the incorrect standard in assessing Mr. West's claims, we reverse and remand with instructions. The order on appeal provides the following background: In 2016, Mr. West admitted to violating his probation and community control in three different cases when he committed new law violations, failed to remain confined to his approved residence, and associated with H.W., his codefendant in one of the underlying cases. The trial court revoked Mr. West's probation and sentenced him to the statutory maximum terms for each conviction, with the sentences to run concurrently. Thereafter, Mr. West filed the instant motion for postconviction relief raising two claims of ineffective assistance of counsel. First, Mr. West alleged that counsel erroneously advised him that he could prevent the State from introducing evidence as to the specifics of the alleged new law violations by admitting to violating his probation and community control. Instead, after Mr. West admitted to violating his probation and community control, the State proceeded to present testimony from law enforcement related to the alleged new law violations, which Mr. West argued resulted in 2 the trial court imposing the maximum penalty. Mr. West contended in his motion that had he been properly advised by counsel he would have proceeded to an evidentiary hearing on his revocation of probation and community control. Second, Mr. West alleged that counsel was ineffective for failing to investigate and call H.W. as a witness because H.W. would have testified that Mr. West did not commit the new law violations. Mr. West's motion included an affidavit from H.W., in which H.W. admitted to committing the alleged new law violations. The affidavit further provided that H.W. picked up Mr. West after H.W. committed the crimes and that Mr. West did not know H.W. had stolen property in the car. Mr. West claimed in his motion that had counsel investigated and called H.W. as a witness, H.W.'s testimony would have refuted the State's claims that Mr. West willfully and substantially violated the terms of his probation or community control.1 He also claimed in the 1 In his reply brief, Mr. West argues that H.W.'s testimony would have illustrated technical violations of his probation and community control as opposed to substantive violations, but that claim was not raised in his rule 3.850 motion and is therefore not properly before this court. See State v. Dougan, 202 So. 3d 363, 378 (Fla. 2016) ("The State raises this argument for the first time in its Reply Brief in this Court, so it is waived."); Shere v. State, 742 So. 2d 215, 219 n.9 (Fla. 1999) ("This claim is procedurally barred 3 motion that without proving a willful and substantial violation, revocation of his probation and community control would have been improper. See Robinson v. State, 907 So. 2d 1284, 1286 (Fla. 2d DCA 2005) ("A violation that triggers revocation of probation must be willful and substantial, and its willful and substantial nature must be supported by the greater weight of the evidence."). However, the postconviction court summarily denied Mr. West's claims. With regard to the first claim, the postconviction court found that Mr. West could not establish that he was prejudiced by counsel's misadvice related to the presentation of the alleged new law violation evidence where the testimony of law enforcement would have been presented in the event Mr. West had proceeded with an evidentiary hearing and where there was no indication "that the judge would have rendered a more lenient sentence had the same testimony been offered at an evidentiary hearing instead of the plea hearing." The postconviction court summarily denied Mr. West's second claim, finding that the allegation of deficient performance was because it should have been raised in Shere's rule 3.850 motion, not for the first time in this appeal."). 4 conclusively refuted by a portion of the transcript that it attached to its order.2 Specifically, the postconviction court found that prior to admitting to violating his probation and community control, Mr. West advised the trial court that his counsel had failed to investigate defense witnesses for the new law offenses. In response to that allegation, the trial court conducted a Nelson3 hearing, which provided Mr. West's counsel an opportunity to respond, as well as several recesses giving Mr. West an opportunity to decide whether to request a continuance to retain private counsel. The trial court ultimately found that Mr. West's counsel was not deficient at that hearing, and the postconviction court determined that it had "no reason to dispute that ruling." The postconviction court also concluded that Mr. West could not prove any prejudice 2 The postconviction court noted that the second claim was insufficiently pleaded, but it nonetheless ruled on the merits without granting leave to amend. Nelson v. State, 875 So. 2d 579, 584 (Fla. 2004) ("[A]s part of the requirement to show that counsel's ineffectiveness prejudiced the defendant's case, a facially sufficient postconviction motion alleging the ineffectiveness of counsel for failing to call certain witnesses must include an assertion that those witnesses would in fact have been available to testify at trial."). 3 Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973). 5 for claim two because, "[e]ven accepting the allegations in [H.W.]'s affidavit as true, . . . those allegations confirm that [Mr. West] violated the conditions proscribing contact with [H.W.] and requiring him to remain confined to his approved residence." "When 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.' " Martin v. State, 205 So. 3d 811, 812 (Fla. 2d DCA 2016) (quoting Jennings v. State, 123 So. 3d 1101, 1121 (Fla. 2013)). To plead a facially sufficient claim for ineffective assistance of counsel, a defendant must plead sufficient facts to establish that his counsel's performance was deficient and that he was prejudiced by such deficiency. See Martin, 205 So. 2d at 812 (citing Strickland v. Washington, 466 U.S. 668 (1984)). "With regard to guilty and nolo contendere pleas, prejudice is satisfied by demonstrating 'a reasonable probability that but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial' " or, in this case, the evidentiary revocation hearing. Ey v. State, 982 So. 2d 618, 621 (Fla. 2008) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). That determination is based on 6 the totality of the circumstances, but a "defendant does not have to show that he actually would have prevailed." Griffin v. State, 114 So. 3d 890, 899 (Fla. 2013). As an initial matter, the postconviction court applied the wrong standard when considering whether Mr. West suffered any prejudice as the result of counsel's alleged ineffective assistance. The postconviction court analyzed Mr. West's allegations of prejudice by assessing whether there was a "reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different." This was the wrong standard because Mr. West's case was not tried. Instead, Mr. West alleged that he forewent a revocation hearing because of his counsel's ineffectiveness, and therefore, although the viability of defense to the alleged violations remains a circumstance to be evaluated within its consideration, the postconviction court's analysis should have focused on whether there was a reasonable probability that, but for his counsel's misadvice and omissions, Mr. West would have insisted on going forward with the revocation hearing. See Gilbert v. State, 913 So. 2d 84, 86 (Fla. 2d DCA 2005). 7 Additionally, we disagree with the postconviction court's determination on claim two that Mr. West's allegation of deficient performance is conclusively refuted by the portions of the record attached to the order. While the attached transcript indicates that Mr. West previously advised the trial court of his counsel's alleged failure to investigate defense witnesses and the trial court's conclusion that counsel was not deficient, the transcript does not make it clear that Mr. West was referring to the specific witness he identified in his rule 3.850 motion. See, e.g., Tualla v. State, 251 So. 3d 337, 338–39 (Fla. 2d DCA 2018) (explaining that the postconviction court's order and record attachments did not conclusively refute the defendant's claims that counsel was ineffective for failing to call or investigate his parents and girlfriend as potential witnesses because, while the record included the transcript from a pretrial hearing at which counsel acknowledged the existence of one witness he planned to examine at trial, the transcript did not identify the witness, thus leaving "looming questions left unanswered by the limited record before us"). We further note that the postconviction court's determination that claim two of Mr. West's motion fails to establish any prejudice 8 because H.W.'s proffered testimony would have "confirm[ed] that [Mr. West] violated the conditions proscribing contact with [H.W.] and requiring him to remain confined to his approved residence" is also not supported by the portions of the record attached to the order. The postconviction court did not attach to its order the orders of probation and community control or the affidavit of violation, and our record does not otherwise include them. Without those documents, we can confirm neither the conditions of Mr. West's probation and community control nor which conditions were allegedly violated. Accordingly, we reverse the order summarily denying Mr. West's motion and remand for the postconviction court to analyze the claims utilizing the correct standard. See Clayton v. State, 12 So. 3d 1259, 1260 (Fla. 2d DCA 2009); Young v. State, 988 So. 2d 650, 651 (Fla. 2d DCA 2008). On remand, the postconviction court shall either attach those portions of the record that conclusively refute Mr. West's claims or conduct an evidentiary hearing. Should the postconviction court determine that either claim is facially insufficient, it should first allow Mr. West one opportunity to amend it if he is able to do so and the claim is not otherwise conclusively 9 refuted by the record. See Spera v. State, 971 So. 2d 754, 762 (Fla. 2007). SLEET and LABRIT, JJ., Concur. Opinion subject to revision prior to official publication. 10