Marcus Antonio Tribbitt v. State of Florida

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MARCUS ANTONIO TRIBBITT, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-2100 May 4, 2022 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County; Melissa Gravitt, Judge. Marcus Antonio Tribbitt, pro se. LABRIT, Judge. Marcus Tribbitt appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion, which asserted one claim of ineffective assistance of counsel based on newly discovered evidence. Because Mr. Tribbitt's motion is facially sufficient and this record doesn't conclusively refute his claim, we reverse and remand for the postconviction court to either host an evidentiary hearing or attach to its order portions of the record conclusively refuting Mr. Tribbitt's claim. I In 2007, a jury convicted Mr. Tribbitt of attempted robbery with a deadly weapon, armed robbery with a firearm, and fleeing or attempting to elude. In 2010, Mr. Tribbitt timely filed a rule 3.850 motion, raising three claims of ineffective assistance of counsel; the postconviction court denied that motion in 2013, and this court affirmed. See Tribbitt v. State, 151 So. 3d 1252 (Fla. 2d DCA 2014) (table decision). On May 1, 2020, Mr. Tribbitt filed the rule 3.850 motion that is the subject of this appeal. In his 2020 motion, Mr. Tribbitt contended that his trial counsel didn't tell him about a twenty-year plea offer the State allegedly made in 2007. Mr. Tribbitt admitted that he rejected another plea offer for twenty years' imprisonment plus ten years' probation before trial but asserted that he just learned about this stand-alone twenty-year offer. Mr. Tribbitt alleged that this information was unknown to him, and that he could not have 2 ascertained the information sooner with the exercise of due diligence. He explained that "on February 5, 2020[, his] mother . . . spoke to [his] trial counsel . . . via telephone" and counsel "revealed the previously un-conveyed [sic] plea offer." He added that his mother learned of this plea offer "after multiple years of conducting [a]n independent investigation through the purchase of [c]ourt documents/files and making numerous telephone calls." Mr. Tribbitt attached his mother's affidavit to his motion. She swore that she spoke to Mr. Tribbitt's trial counsel by telephone on February 5, 2020, and that she immediately related her conversation to Mr. Tribbitt. She attested that trial counsel said "that she would have to check her case file[] but that she only could remember receiving a twenty-year plea offer[] from the State Prosecutor prior to trial." She added that when she pressed trial counsel on whether this offer included probation, counsel "only remember[ed] the twenty-year plea offer." Mr. Tribbitt argued that his circumstances were "virtually identical" to those in Petit-Homme v. State, 205 So. 3d 848 (Fla. 4th DCA 2016), where the defendant claimed his half-brother told him about a previously unconveyed plea offer seventeen years after his 3 conviction. And the Fourth District held that those allegations were facially sufficient to support an ineffective assistance of counsel claim based on newly discovered evidence. Id. at 849.1 The postconviction court summarily denied Mr. Tribbitt's motion, concluding that (1) it was time-barred "in that [Mr. Tribbitt] could have discovered this claim during his 2010 postconviction practice" and (2) Mr. Tribbitt's mother's affidavit did "not show that probation was not a part of the offer" because "[c]ounsel informed the mother that she needed to check her notes" and "[n]o follow up with counsel was conducted." The court did not attach any record evidence to its order and instead incorporated the State's response to Mr. Tribbitt's motion by reference.2 II 1 Like the Fourth District, this court and others have recognized that ineffective assistance of counsel claims may be based on newly discovered evidence of an unconveyed plea offer. See Forbes v. State, 269 So. 3d 677, 680 (Fla. 2d DCA 2019); Taylor v. State, 248 So. 3d 280, 281 (Fla. 5th DCA 2018). 2 The State's response consisted of legal argument, a copy of the charging document, the 2013 order denying the rule 3.850 motion Mr. Tribbitt had filed in 2010, and a printout of the case history. No evidence or other documentary information concerning any plea offers appears in the State's response. 4  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). To uphold the postconviction court's summary denial of a rule 3.850 motion, the claims must be facially insufficient, conclusively refuted by the record, or procedurally- or time-barred. Id. And "[w]hen the trial court denies postconviction relief without conducting an evidentiary hearing, 'this [c]ourt must accept [the defendant's] factual allegations as true to the extent they are not refuted by the record.' " Tompkins v. State, 872 So. 2d 230, 238 (Fla. 2003) (third alteration in the original) (quoting Rose v. State, 774 So. 2d 629, 632 (Fla. 2000)). The postconviction court's summary denial of Mr. Tribbitt's motion must be reversed. Under Petit-Homme and other district court precedent that bound the postconviction court, Mr. Tribbitt's claim was facially sufficient and was not procedurally- or time- barred. A defendant can file a rule 3.850 motion after the two-year time limit if his claim is predicated on "newly discovered facts." See Fla. R. Crim. P. 3.850(b)(1); Blake v. State, 152 So. 3d 66, 68 (Fla. 2d DCA 2014) (discussing the "newly discovered facts" exception). A motion based on newly discovered facts must be filed "within 5 [two] years of the time the new facts were or could have been discovered with the exercise of due diligence." Fla. R. Crim. P. 3.850(b)(1). III In two decisions featuring facts quite similar to those at hand, the Fourth District held that the defendants alleged facially sufficient claims outside the two-year time limit by asserting they first learned of a previously unconveyed plea offer through a third party and then promptly filed rule 3.850 motions. See Clark v. State, 236 So. 3d 481, 482 (Fla. 4th DCA 2018); Petit-Homme, 205 So. 3d at 849. As did the postconviction court here, the postconviction courts in Petit-Homme and Clark concluded that the defendants could have discovered these plea offers sooner with due diligence. The Fourth District disagreed, reasoning in Petit-Homme that a third party's knowledge of a plea offer should not be imputed to the defendant for purposes of the two-year deadline prescribed in rule 3.850(b). See Petit-Homme, 205 So. 3d at 849. Two years later, the Fourth District specifically stated that "trial counsel's knowledge of the plea offer is not imputed to [the defendant] for purposes of the newly discovered fact exception of [r]ule 3.850(b)." 6 Clark, 236 So. 3d at 482. See also Taylor v. State, 248 So. 3d 280, 281 (Fla. 5th DCA 2018) (reversing summary denial of rule 3.850(b) motion where defendant alleged that he learned of unconveyed plea offer eleven years after his conviction).3 Our dissenting colleague contends that, as a matter of law, trial counsel's knowledge of a plea offer precludes its consideration as newly discovered under the plain language of rule 3.850. While we appreciate our colleague's approach to interpretation of the rule, the trial court was bound by the Fourth District's construction of it. Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) ("[I]n the absence of interdistrict conflict, district court decisions bind all Florida trial courts.").4 3 We agree with the dissent's textual analysis and conclusion that Petit-Homme, 205 So. 3d 848, Clark, 236 So. 3d 481, and Taylor, 248 So. 3d 280 "expand postconviction litigation beyond the limits authorized by the plain language of rule 3.850 and section 924.051, [Florida Statutes]." Nonetheless, the postconviction court was bound by these decisions. And under these decisions—with which this court has implicitly agreed—Mr. Tribbitt's motion is facially sufficient and is not procedurally- or time-barred. 4 There is no interdistrict conflict; and as the dissent acknowledges, this court has recognized that an unconveyed plea offer can constitute newly discovered evidence for purposes of rule 3.850(b). See Forbes v. State, 269 So. 3d 677, 680 (Fla. 2d DCA 7  Mr. Tribbitt's motion pled all the elements required by Alcorn v. State, 121 So. 3d 419, 430 (Fla. 2013). See Clark, 236 So. 3d at 483 (holding that a defendant must plead the Alcorn elements to raise an ineffective assistance of counsel claim based on counsel's failure to convey a favorable plea offer). Accordingly, Mr. Tribbitt's motion was facially sufficient, and "[n]o procedural hurdles prevented the postconviction court from considering the merits of [Mr. Tribbitt's] newly discovered evidence claim." See Forbes v. State, 269 So. 3d 677, 679 (Fla. 2d DCA 2019). Though we agree with the postconviction court that the mother's affidavit does not conclusively "show" that the State offered Mr. Tribbitt a twenty-year plea offer without probation, Mr. Tribbitt was not required to make such a showing at this stage of the proceeding.5 Instead, Mr. Tribbitt would be required to prove at 2019); see also Gallant v. State, 898 So. 2d 1156, 1157 (Fla. 2d DCA 2005). 5 We recognize that because Mr. Tribbitt seeks relief under the newly discovered evidence exception of rule 3.850(b)(1) he was required to demonstrate "due diligence" in discovering the new evidence (i.e., the unconveyed plea offer) when he filed his rule 3.850 motion. See Burns v. State, 110 So. 3d 96, 97 (Fla. 2d DCA 2013). However, proof of due diligence and proof of existence of the 8 an evidentiary hearing that the twenty-year plea offer existed. See Forbes, 269 So. 3d at 680 (holding that to succeed on an ineffective assistance of counsel claim based on an uncommunicated plea offer, the defendant must prove the existence of the offer at an evidentiary hearing); see generally Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000) (explaining that the defendant only "bears the burden of establishing a prima facie case based upon a legally valid claim" before an evidentiary hearing); Green v. State, 857 So. 2d 304, 305 (Fla. 2d DCA 2003) (holding that the defendant "ha[s] the burden of proving his claim of ineffective assistance of counsel" at "an evidentiary hearing" on the rule 3.850 motion (emphasis added)). And the postconviction court was required to accept Mr. Tribbitt's allegations—including his claim that the twenty-year no probation plea offer existed—as true unless they were conclusively refuted by the record. See Tompkins, 872 So. 2d at 238. Because no record evidence conclusively refutes Mr. Tribbitt's allegation that "new evidence" are two separate showings. While these showings are certainly related, no Florida court has required the defendant to prove the veracity of the "newly discovered evidence" when he files his rule 3.850 motion. 9 this plea offer existed,6 we too are bound to accept Mr. Tribbitt's allegations as true. See id. IV Florida courts interpret the due diligence provision in rule 3.850(b)(1) to require the defendant to "not only allege but also demonstrate that his motion was filed within two years from the date that the evidence could have been discovered." See, e.g., Burns v. State, 110 So. 3d 96, 97 (Fla. 2d DCA 2013). Mr. Tribbitt sufficiently alleged due diligence by claiming that he first learned of the plea offer from a third party three months before he filed his motion. See Petit-Homme, 205 So. 3d at 849; Clark, 236 So. 3d at 482; accord Forbes, 209 So. 3d at 679. Mr. Tribbitt also "demonstrated" the operative due diligence facts by attaching his mother's affidavit—in which she confirmed Mr. Tribbitt's allegations and timeline—to his motion. Cf. Burns, 110 So. 3d at 97 (holding that rule 3.850 motion based on newly 6 The mother's affidavit concerning trial counsel's recollection of the plea offer is vague and arguably ambiguous, but it doesn't refute Mr. Tribbitt's claim and neither does any other record evidence. 10 discovered evidence was facially insufficient where defendant "gave no indication when or how he discovered the evidence or why it could not have been discovered sooner"). While it can be argued that Mr. Tribbitt's allegations and his mother's affidavit are conclusory because they don't explain why he couldn't have discovered this plea offer sooner, nothing in this record conclusively refutes Mr. Tribbitt's allegation to the contrary. See Clark, 236 So. 3d at 483 (stating that reversal of summary denial of rule 3.850 motion was required where record did not conclusively refute defendant's allegation that he could not have learned of the plea offer with due diligence during the two-year time limit). The limited record before us does not support the postconviction court's hypothesis (which the dissent adopts) that Mr. Tribbitt "could have discovered this claim during his 2010 postconviction practice." The order denying the rule 3.850 motion Mr. Tribbitt had filed in 2010 reveals that the 2010 motion was based on counsel's allegedly deficient performance at trial—not the conveyance of plea offers. Although the dissent takes judicial notice of various factual matters outside this record to conclude that Mr. Tribbitt could have discovered the unconveyed plea offer sooner, 11 nothing in the record before us and nothing in the postconviction court's order conclusively refutes Mr. Tribbitt's allegation that he could not have learned of the plea offer with due diligence during the two-year time limit. As was the case in Clark, we "express no opinion on the merits of [Mr. Tribbitt's] allegations or whether he could have learned of the offer with due diligence." See Clark, 236 So. 3d at 482. And as was the case in Clark, this "record simply fails to conclusively refute the claim, so reversal is required." See Id. Summarizing, under directly applicable precedent that bound the postconviction court, Mr. Tribbitt pled a facially sufficient ineffective assistance of counsel claim based on the allegedly uncommunicated plea offer. Because the record doesn't conclusively refute Mr. Tribbitt's claim, the postconviction court erred by summarily denying Mr. Tribbitt's motion. See Woodbury, 302 So. 3d at 494–95. Consequently, we reverse and remand for the postconviction court to either hold an evidentiary hearing or attach to its order portions of the record that refute Mr. Tribbitt's claim. See id. Reversed and remanded. 12 LUCAS, J., Concurs. BLACK, J., Dissents with opinion BLACK, Judge, Dissenting. I would affirm the postconviction court's summary denial of Tribbitt's motion. I would also certify a question of great public importance as to whether a plea offer known to trial counsel but not conveyed to the defendant and therefore unknown to the defendant can be considered newly discovered evidence for purposes of the time limitation and successive motion exceptions in rule 3.850. Such claims are, in my opinion, ineffective assistance of counsel claims couched as newly discovered evidence and should therefore be considered only if the motion raising them is the defendant's first rule 3.850 motion and it is filed within two years of the judgment and sentence becoming final. Counsel's knowledge of the plea offer precludes its consideration as newly discovered under the plain language of rule 3.850, and counsel's deficient performance in failing to convey it is neither a fact nor evidence as required by the 13 rule. I have no disagreement with the well-established law that the failure to convey a plea offer can constitute ineffective assistance of counsel. But that is not the issue in this case. The threshold issue here is whether a plea offer known to trial counsel but purportedly unconveyed to the defendant can constitute newly discovered evidence for purposes of the procedural and time limitation exceptions under rule 3.850 and section 924.051(6), Florida Statutes. Based on the unambiguous language of the rule and the statute and long-standing Florida Supreme Court precedent discussing newly discovered evidence, it does not. Rule 3.850(b)(1) provides that no motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final unless it alleges that . . . the facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence, and the claim is made within 2 years of the time the new facts were or could have been discovered with the exercise of due diligence. (Emphasis added.) Section 924.051(6)(a) similarly provides: In a noncapital case, a petition or motion for collateral or other postconviction relief may not be considered if it is filed more than 2 years after the judgment and sentence 14  became final, unless the petition or motion alleges that . . . [t]he facts upon which the claim is predicated were unknown to the petitioner or his or her attorney and could not have been ascertained by the exercise of due diligence . . . . (Emphasis added.) "When a rule is clear and unambiguous, courts will not look behind the rule's plain language or resort to rules of construction to ascertain intent." State v. Green, 149 So. 3d 1146, 1149 (Fla. 2d DCA 2014) (quoting Kidder v. State, 117 So. 3d 1166, 1170-71 (Fla. 2d DCA 2013)). The same is true with regard to clear and unambiguous statutes. See Steiger v. State, 328 So. 3d 926, 930 (Fla. 2021) (citing State v. Maisonet-Maldonado, 308 So. 3d 63, 68 (Fla. 2020)). The rule and statute authorizing claims of newly discovered evidence as exceptions to the two-year procedural bar are written in the disjunctive, using "or." "[T]he word 'or' is generally construed in the disjunctive when used in a statute or rule. The use of this particular disjunctive word in a statute or rule normally indicates that alternatives were intended." Sparkman v. McClure, 498 So. 2d 892, 895 (Fla. 1986) (first citing Telophase Soc'y of Fla., Inc. v. State Bd. of Funeral Dirs. & Embalmers, 334 So. 2d 563, 566 (Fla. 1976); 15 then citing United States v. Garcia, 718 F.2d 1528, 1532-33 (11th Cir. 1983); and then citing Brown v. Brown, 432 So. 2d 704, 710 (Fla. 3d DCA 1983), disapproved on other grounds by DeClair v. Yohanan, 453 So. 2d 375 (Fla. 1984)); see also Kirksey v. State, 433 So. 2d 1236, 1241 n.2 (Fla. 1st DCA 1983) ("[W]e note the general rule that 'the use of a disjunctive in a statute indicates alternatives and requires that those alternatives be treated separately.' " (quoting Quindlen v. Prudential Ins. Co. of Am., 482 F.2d 876, 879 (5th Cir. 1973))). Therefore, in order to meet the exception to the two-year procedural bar, the evidence cannot have been known to the defendant or, alternatively, to counsel; that is, if either the defendant or counsel knew of the evidence, it is not newly discovered. Cf. Derossett v. State, 294 So. 3d 984, 988 n.5 (Fla. 5th DCA 2020) ("Section 776.013(2)(c) is written in the disjunctive. It provides that the statutory presumption under subsection (1) does not apply if the person using the defensive force was either 'engaged in criminal activity' or was using the dwelling 'to further a criminal 16 activity.' " (emphasis added)).7 This reading and application of the disjunctive is consistent with numerous Florida Supreme Court cases.8 In fact, the supreme court has clearly stated that evidence known to trial counsel is not newly discovered such that the procedural bar of postconviction motions is lifted. Atkins v. State, 663 So. 2d 624, 626 (Fla. 1995) ("Moreover, the photographs clearly are not newly discovered evidence, which could lift the procedural bar, since their existence was known to trial counsel."); see also Miller v. State, 926 So. 2d 7 Abundant case law also sets forth the disjunctive standard. See, e.g., Jones v. State, 709 So. 2d 512, 521 (Fla. 1998) ("First, in order to be considered newly discovered, the evidence 'must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence." (emphasis added) (alteration in original) (quoting Torres-Arboleda v. Dugger, 636 So. 2d 1321, 1324-25 (Fla. 1994))). 8 Although the supreme court cases discuss rule 3.851, the language of rules 3.850 and 3.851 is identical in terms of the newly discovered evidence exception. See Fla. R. Crim. P. 3.851(d)(2) ("No motion shall be filed or considered pursuant to this rule if filed beyond the time limitation provided in subdivision (d)(1) unless it alleges . . . the facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence . . . ."). 17 1243, 1258 (Fla. 2006) (affirming summary denial of Miller's rule 3.851 motion and concluding that Miller "fail[ed] step one of the newly discovered evidence test" because "Miller's trial counsel was aware of th[e] information at the time of trial"); cf. Rivera v. State, 187 So. 3d 822, 834 (Fla. 2015) ("Rivera has not established that the documents relied on in this motion were unavailable to counsel during the initial postconviction proceedings."). Nonetheless, I recognize that this court and the Fourth and Fifth District Courts of Appeal have previously held that a plea offer known to trial counsel but unconveyed to the defendant can be considered newly discovered evidence and that the postconviction court is bound by those decisions. Those decisions, however, do not analyze—and in most instances do not even cite—the applicable language of rule 3.850 or section 924.051(6). Nor do they discuss or cite Florida Supreme Court and other cases concluding that where counsel knew of the evidence it is not newly discovered or cases concluding that counsel's deficient performance is not a fact for purposes of the 18 definition of newly discovered evidence.9 The first and fifth footnotes in the majority exemplify the problem with these cases: they frame the issue as ineffective assistance of counsel when it is a claim of newly discovered evidence (that is, newly discovered ineffective assistance of counsel).10 Tribbitt primarily relies on two cases from the Fourth District: Petit-Homme v. State, 205 So. 3d 848 (Fla. 4th DCA 2016), and Clark v. State, 236 So. 3d 481 (Fla. 4th DCA 2018). As pointed out by the majority, both this court and the Fifth District have also effectively held that plea offers known to trial counsel but 9 The Florida Supreme Court has also held that where the trial court knew of the evidence it is not newly discovered for purposes of postconviction relief. See, e.g., Rodgers v. State, 288 So. 3d 1038, 1040 (Fla. 2019). 10 The pleading requirements of ineffective assistance of counsel for failure to convey a plea offer are not the same as the pleading requirements for claims of newly discovered evidence. Even replacing the second prong of the Jones test—requiring the newly discovered evidence to be of such a nature that it would probably produce an acquittal on retrial—with the test set forth in Alcorn v. State, 121 So. 3d 419 (Fla. 2013), the defendant must first establish that the plea offer was unknown to him or to counsel at the time of trial and that it could not have been discovered through due diligence. Where the allegation is that counsel knew of the offer and failed to convey it, the first prong of Jones and the unambiguous requirement of the rule cannot be met. 19 unconveyed to defendants can constitute newly discovered evidence for purposes of rule 3.850's exception to the two-year filing limitation. In 2005, without citation to rule 3.850 or discussion of the newly discovered evidence standard, this court reversed the summary denial of a successive postconviction motion alleging that trial counsel had failed to communicate a plea offer to the defendant. Gallant v. State, 898 So. 2d 1156, 1157 (Fla. 2d DCA 2005). Citing only the standard for ineffective assistance of counsel for failing to convey a plea offer, we determined that there was "no conclusive proof in the record that [the defendant] knew or should have known that the State had made a four-year offer when he filed his original rule 3.850 motion" and held that Gallant's motion was "founded upon newly discovered evidence" and not time-barred. Id. The Fourth District issued Petit-Homme in 2016, which, like Gallant, focused on the ineffective assistance of counsel case law rather than on the operative language of rule 3.850 to reverse the summary denial of a newly discovered evidence claim alleging counsel's failure to convey a plea offer. Petit-Homme does not discuss how counsel's knowledge of the plea offer satisfies the 20 newly discovered evidence requirements. Rather, it states only that "[k]nowledge of the plea offer by [defendant's] half-brother is not imputed to [defendant]" for purposes of timeliness. 205 So. 3d at 849. Two years later, in Clark, the Fourth District relied on Petit- Homme to reverse the summary denial of a rule 3.850 motion alleging newly discovered evidence in the form of counsel's failure to convey a plea offer. 236 So. 3d at 482. The court expressly disagreed with the postconviction court's determination that "the plea offer was not newly discovered evidence because Clark's counsel was aware of the offer," instead concluding that "[i]n these circumstances, trial counsel's knowledge of the plea offer is not imputed to [defendant] for purposes of the newly discovered fact exception to [r]ule 3.850(b)(1)." Id. This conclusion was reached without analysis and despite the court's citation to rule 3.850(b)(1) and the operative disjunctive language. See id.11 11 Clark was cited with apparent approval by this court in Forbes v. State, 269 So. 3d 677, 679 (Fla. 2d DCA 2019). Although Forbes is procedurally distinguishable in that it affirmed the nonsummary denial of a postconviction motion, the opinion clearly states that "[n]o procedural hurdles prevented the postconviction 21  In 2019, the Fifth District issued Taylor v. State, 279 So. 3d 1274 (Fla. 5th DCA 2019), which—like Gallant, Petit-Homme, and Clark—reversed the summary denial of a rule 3.850 motion alleging newly discovered evidence of a plea offer unconveyed by counsel. Id. at 1275. And like Gallant and Petit-Homme, Taylor fails to cite the operative language of rule 3.850, instead relying only on ineffective assistance of counsel case law. The most interesting aspect of Taylor, however, is its apparent inconsistency with two earlier decisions of the Fifth District: Lamb v. State, 212 So. 3d 1108 (Fla. 5th DCA 2017), and Howarth v. State, 843 So. 2d 351 (Fla. 5th DCA 2003). In Lamb, the court affirmed the summary dismissal of a rule 3.850 motion, concluding in part that trial counsel's deficient performance "is not evidence" for purposes of the newly discovered evidence standard of rule 3.850. 212 So. 3d at 1112. The court also concluded in part that certain evidence was discoverable with the exercise of due diligence within two years of Lamb's judgment court from considering the merits of [defendant's] newly discovered evidence claim" that counsel failed to convey a plea offer. Id. 22 and sentence becoming final. Id. at 1111. Howarth, an earlier decision addressing the summary denial of a petition for writ of error coram nobis, held that "[a] prima facie case for relief is not made by couching other claims in terms of newly discovered evidence or by characterizing previously known information as newly discovered." 843 So. 2d at 352. Critically, the court also held that "[c]laims of ineffective assistance of counsel are not errors of fact that are cognizable in a traditional petition for writ of error coram nobis." Id. at 353. The Third District has agreed with this conclusion. See Medina v. State, 919 So. 2d 566, 567-68 (Fla. 3d DCA 2006) (affirming based on the "detailed and thoughtful" order denying the petition for writ of error coram nobis which quoted Howarth).12 Gallant, Petit-Homme, Clark, and Taylor expand postconviction 12 In Wood v. State, 750 So. 2d 592, 595 (Fla. 1999), the Florida Supreme Court "[r]ecogniz[ed] the similarity of the writ of error coram nobis and rule 3.850 relief" and amended rule 3.850 "by deleting the 'in custody' requirement so that both custodial and noncustodial movants may rely on and be governed by the rule, thereby eliminating the need for the writ." In effect, rule 3.850 supplanted the writ of error coram nobis, but the case law analyzing the language—the same language at issue here—remains applicable. 23 litigation beyond the limits authorized by the plain language of rule 3.850 and section 924.051. They fail to recognize and apply the disjunctive language of the rule and statute and fail to apply Florida Supreme Court precedent confirming that where trial counsel is aware of the evidence at the time of trial it is not newly discovered. But they also fail to recognize that counsel's deficient performance in not conveying a plea offer is legal error—not a fact and not evidence for purposes of rule 3.850(b)(1)—and that claims of newly discovered evidence are a wholly distinct category from claims of ineffective assistance of counsel, complete with a higher burden of proof. The Florida Supreme Court has consistently applied the term "fact" as used in rule 3.850(b)(1) to mean "evidence that tends to prove or disprove guilt or innocence." See, e.g., Coppola v. State, 938 So. 2d 507, 511 (Fla. 2006). In Coppola, the court applied that definition in holding that a change in decisional law on final judgments is not a newly discovered fact under rule 3.850(b)(1). Id. In so concluding, the court found merit in the "First District's observation that every decision could be viewed as a fact." Id. at 510 (discussing Regan v. State, 787 So. 2d 265, 267 (Fla. 1st DCA 2001)). In Regan, the First District determined that 24 rule 3.850(b)(1) "contemplates a fact in the sense of evidence," such that "the existence of the change in the law at issue [in Regan] d[id] not have a tendency to prove or disprove guilt or innocence." 787 So. 2d at 267. The court went on to state that "[i]f th[e] change in the law is considered a 'fact' as contemplated by rule 3.850(b)(1), then it follows that every change in the law will also necessarily become a fact as per this rule, and will remove entirely any need to perform a [retroactivity] analysis." Id. The same should be said about ineffective assistance of counsel as a "fact" under rule 3.850(b)(1). If the failure of counsel to relay a plea offer is a fact as contemplated by rule 3.850(b)(1), then every error of counsel will also be a fact, negating the express two-year time limitation of the rule. Newly discovered deficient performance is not a newly discovered fact under rule 3.850(b)(1). See Lamb, 212 So. 3d at 1112 ("Accepting these allegations as true, counsel's failure to object or move for a mistrial is not evidence, let alone newly discovered evidence."); Howarth, 843 So. 2d at 353 ("Claims of ineffective assistance of counsel are not errors of fact . . . ."); cf. Patrick v. State, 302 So. 3d 734, 740 (Fla. 2020) ("The ultimate conclusions as to whether a decision or omission by counsel 25 constitutes deficient performance and whether a deficiency prejudiced the defendant are matters of law." (citing Patrick v. State, 246 So. 3d 253, 260 (Fla. 2018)), reh'g denied, No. SC19-140, 2020 WL 5587395 (Fla. Sept. 18, 2020), and cert. denied sub nom. Patrick v. Florida, 141 S. Ct. 2706 (2021); Taylor v. State, 260 So. 3d 151, 158 (Fla. 2018) (discussing the Jones [v. State, 709 So. 2d 512, 521 (Fla. 1998),] test and reiterating that newly discovered evidence must be admissible and "probably produce an acquittal on retrial"); Dwyer v. State, 981 So. 2d 606, 609 (Fla. 4th DCA 2008) (affirming summary denial of rule 3.850(b)(1) motion where defendant argued that counsel failed to inform him of the direct consequences of his plea because "[c]onditional release is neither a fact nor 'newly discovered' ").13 That counsel's ineffectiveness is not a fact for purposes of rule 3.850(b)(1) is further supported by the law establishing that claims of newly discovered evidence, ineffective assistance of counsel, and 13 Viewing the newly discovered fact to be the plea offer itself, rather than counsel's failure to convey it, returns us to the initial reason that these claims must fail: counsel knew of the offer at the time of trial, and it is therefore not newly discovered. 26 the government's failure to disclose evidence are "three distinct legal claims" with "separate standards of proof that a defendant must meet in order to prevail." See Robinson v. State, 770 So. 2d 1167, 1171 (Fla. 2000) (Anstead, J., specially concurring). The test for newly discovery evidence claims is "more rigorous" than the standard applied to claims of ineffective assistance of counsel; the former "presupposes that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged." Robinson v. State, 913 So. 2d 514, 522 n.7 (Fla. 2005) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). That is, the newly discovered evidence standard presupposes that counsel performed as guaranteed by the Sixth Amendment. Moreover, the Florida Supreme Court recently considered the language of section 924.051, which "governs the '[t]erms and conditions of appeals and collateral review in criminal cases.' " Steiger, 328 So. 3d at 929. The court recognized and applied the statute's requirements, id. at 930, that "[t]he right to direct appeal and the provisions for collateral review created in [chapter 924] may only be implemented in strict accordance with the terms and 27 conditions of [section 924.051]" and that "[i]t is the intent of the [l]egislature that all terms and conditions of direct appeal and collateral review be strictly enforced, including the application of procedural bars," § 924.051(2), (8), Fla. Stat. (2020). In light of the unambiguous language of rule 3.850 and section 924.051(6) and strictly applying section 924.051 and the procedural bars to postconviction relief, I would conclude that claims such as Tribbitt's cannot satisfy the threshold newly discovered evidence exception as a matter of law. Therefore, I would certify a question of great public importance in reliance on the language of rule 3.850 and the Florida Supreme Court's interpretation of that language. Having set forth my disagreement with the existing case law, which I recognize to be binding upon this court and the postconviction court, I now express my rationale for dissenting. The language of rule 3.850, section 924.051, and the case law all include both the disjunctive "or" and the conjunctive "and could not have been ascertained by the exercise of due diligence." (Emphasis added.) Therefore, and notwithstanding that counsel's deficiencies are not evidence or fact, if either the defendant or counsel could have ascertained the evidence timely with the exercise of diligence, 28 it cannot form the basis for an exception to the procedural bars. The postconviction court can summarily deny a motion "[i]f the motion is legally sufficient but all grounds in the motion can be conclusively resolved either as a matter of law or by reliance upon the records in the case." Fla. R. Crim. P. 3.850(f)(5). Further, the postconviction court "is authorized to summarily deny a newly- discovered-evidence claim if the motion, files, and record refute the allegations pertaining to either (or both) prongs of the Jones test." Rogers v. State, 327 So. 3d 784, 787 (Fla. 2021) (citing Fla. R. Crim. P. 3.851(f)(5)(B)). The first prong of the Jones test has been discussed in depth: "[I]n order to be considered newly discovered, the evidence 'must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence.' " Jones, 709 So. 2d at 521 (second alteration in original) (quoting Torres-Arboleda v. Dugger, 636 So. 2d 1321, 1324-25 (Fla. 1994)). In that respect, I fail to see why the Florida Supreme Court's holding in Agan v. State, 560 So. 2d 222 (Fla. 1990), is not applicable here. In Agan, the court reiterated that "[r]ule 3.850 bars an untimely petition based on information previously 29 ascertainable through the exercise of due diligence." Id. at 223 (quoting Demps v. State, 515 So. 2d 196, 198 (Fla. 1987)). The information in Agan and Demps stemmed from a public records request, but I see no principled way to hold that the failure to make a telephone call to trial counsel should be given greater latitude than the failure to make a public records request. See also McDonald v. State, 117 So. 3d 412, 2013 WL 2420798, *1 (Fla. May 28, 2013) (table decision) (affirming summary denial of postconviction motion where "[a]ll the evidence upon which McDonald relies was known to him or his counsel, or was discoverable by due diligence, in 2002 or earlier"). The record demonstrates that Tribbitt failed to exercise due diligence as required by rule 3.850(b)(1); therefore, this case is distinguishable from the cases relied upon by the majority in reaching its decision to reverse. Tribbitt's motion itself belies any contention that the unconveyed plea offer could