Third District Court of Appeal
State of Florida
Opinion filed November 22, 2017.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D16-1119
Lower Tribunal No. 07-22156B
________________
Cesar Ruiz,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Cristina Miranda, Judge.
Law Office of Daniel J. Tibbitt, P.A., and Daniel Tibbitt, for appellant.
Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant
Attorney General, for appellee.
Before LAGOA, EMAS and SCALES, JJ.
SCALES, J.
Cesar Ruiz appeals the trial court’s summary denial of his amended motion
for postconviction relief, pursuant to Florida Rule of Criminal Procedure 3.850,
which raised multiple claims of ineffective assistance of trial counsel. For the
following reasons, we affirm the summary denial as to those claims that the
defendant has elected not to challenge on this appeal, and reverse as to the
remainder for further proceedings consistent with this opinion.
On May 28, 2015, Ruiz filed a timely rule 3.850 pro se motion alleging
twenty-two separate grounds of ineffective assistance of trial counsel in conclusory
fashion. The State filed a response. Ruiz thereafter retained private counsel, who,
on December 10, 2015, filed an amended rule 3.850 motion that incorporated
Ruiz’s prior pro se motion, but set forth the specific grounds as to why Ruiz was
entitled to an evidentiary hearing on only certain of those claims – specifically,
claims Three, Five, Six, Ten, Thirteen, Fourteen, Sixteen, Eighteen, Nineteen,
Twenty, and Twenty-One. The amended motion also set forth two additional
claims for ineffective assistance of counsel – ground A and ground B. The State
filed an amended response that addressed grounds A and B, but which was
otherwise identical to its previous response to Ruiz’s pro se motion. The State also
attached those portions of the record that purportedly refuted certain, but not all, of
these claims.
2
On April 15, 2016, the trial court entered the subject order summarily
denying Ruiz’s amended rule 3.850 motion, incorporating the State’s amended
response and record attachments. In his brief on this appeal, Ruiz does not
challenge the trial court’s summary denial of claims One, Two, Four, Seven, Eight,
Nine, Eleven, Twelve, Fifteen, Seventeen and Twenty-Two that were initially
raised in Ruiz’s pro se rule 3.850 motion, and that were incorporated, but not
addressed, in his amended rule 3.580 motion. We therefore affirm the denial of
these claims without discussion. See Prince v. State,
40 So. 3d 11, 13 (Fla. 4th
DCA 2010) (“In appeals from the summary denial of Rule 3.850 motions, the rules
do not require briefs. . . . An appellant who presents no argument as to why a trial
court’s ruling is incorrect on an issue has abandoned the issue – essentially
conceding that denial was correct.”) (citation omitted).
As to the remaining claims alleging ineffective assistance of counsel –
Three, Five, Six, Ten, Thirteen, Fourteen, Sixteen, Eighteen, Nineteen, Twenty,
Twenty-One, and grounds A and B – because the trial court’s order did not
specifically address any of these claims in a manner from which we can determine
the lower court’s precise reason for denying each claim, we must reverse. See
Runge v. State,
24 So. 3d 768, 769 (Fla. 4th DCA 2009) (“[T]he trial court’s order
did not address any of the claims raised with any degree of specificity. . . . As such,
3
we cannot determine the precise grounds assigned by the trial court for its denial of
the specific grounds in question.).1,2
We therefore: (i) affirm that portion of the trial court’s order summarily
denying claims One, Two, Four, Seven, Eight, Nine, Eleven, Twelve, Fifteen,
Seventeen and Twenty-Two of Ruiz’s amended rule 3.850 motion; (ii) reverse that
portion of the trial court’s order summarily denying claims Three, Five, Six, Ten,
Thirteen, Fourteen, Sixteen, Eighteen, Nineteen, Twenty, Twenty-One, and
grounds A and B; and (iii) remand for the trial court to, with regard to each of the
claims, either grant an evidentiary hearing, or set forth the specific basis for the
denial of relief as to each claim attaching as necessary the portions of the record
which conclusively show Ruiz is not entitled to relief.
Affirmed in part; reversed in part; remanded with instructions.
1 The State suggests that this Court can nevertheless affirm because the order on
review incorporated the State’s amended response and certain portions of the
record. We disagree. Aside from addressing two additional claims of ineffective
assistance of counsel (grounds A and B), the State’s amended response to the
amended rule 3.850 motion is a mirror image of its response to Ruiz’s prior pro se
rule 3.850 motion. The amended response does not address any of the additional
grounds raised in the amended rule 3.850 motion as to claims Three, Five, Six,
Ten, Thirteen, Fourteen, Sixteen, Eighteen, Nineteen, Twenty and Twenty-One.
The State’s amended response therefore provides no clarity as to the trial court’s
reasons for summarily denying these claims.
2We note from Ruiz’s reply brief that Ruiz is not seeking a remand to further
amend his already once-amended rule 3.850 motion.
4
