Third District Court of Appeal
State of Florida
Opinion filed February 16, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1741
Lower Tribunal No. F06-27519
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Roque Esteban Calafell,
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, Marisa Tinkler Mendez, Judge.
Roque Esteban Calafell, in proper person.
Ashley Moody, Attorney General, for appellee.
Before MILLER, GORDO and BOKOR, JJ.
BOKOR, J.
Appellant, Roque Esteban Calafell, seeks post-conviction relief on a
variety of ineffective assistance of counsel claims, presented through
multiple motions. As correctly identified by the trial court in the order on
review, and after consideration of the transcript of the trial and other
documents attached to the trial court’s order, we conclude that Calafell
provides only conclusory allegations with no support in the record,
impermissibly seeks post-conviction review of matters that were, or should
have been, litigated on direct appeal, or both. Similarly, a review of the
record on appeal reveals that Calafell’s attempts to recast some of the claims
as based on “newly-discovered” evidence fail. The record reveals no such
newly discovered evidence or information, and instead shows that Calafell’s
claims are either untimely or inappropriate subject matter for a post-
conviction motion. Accordingly, as explained herein and more thoroughly
examined in the order on appeal, none of Calafell’s claimed instances of
ineffective assistance provide a basis for relief.
Most of the ineffective assistance Calafell claims rely on conclusory
allegations that are either refuted by the transcript of the trial or contain no
basis in the record. For example, Calafell makes an unsupported and
conclusory contention that counsel failed to object to testimony that he
claims was “full of lies” and discrepancies. He offers no record support for
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his claims. See Johnston v. State,
70 So. 3d 472, 483 (Fla. 2011) (holding
that conclusory allegations do not support a claim for post-conviction relief).
Calafell claims ineffective assistance due to a “contaminated” jury,
failure to object to improper argument, and a host of other issues that should
have been, or were, raised on direct appeal. The record refutes the claims;
moreover, such a claim is procedurally barred due to failure to raise the issue
on direct appeal (or such issues were already raised on direct appeal and
rejected). See Jennings v. State,
123 So. 3d 1101, 1122 (Fla. 2013)
(explaining that claims of improper argument should be raised on direct
appeal and cannot form the basis for postconviction proceedings);
Muhammad v. State,
603 So. 2d 488, 489 (Fla. 1992) (holding that
postconviction appeal cannot be used where an issue either was raised, or
could have been raised, on direct appeal). None of the other claims merit
discussion, as they all rely on conclusory allegations without specific record
support (or the record affirmatively refutes the conclusory allegation), should
have been brought on direct appeal, or both. Additionally, to the extent
Calafell raises a conclusory claim of ineffective assistance for failure to ask
for special interrogatories, Calafell cannot make the necessary showing of
prejudice. A prior panel of this court explained, on this issue, that no relief
lies where the State, as here, presented “an alternative theory of guilt for
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which the evidence is sufficient.” Calafell v. State,
220 So. 3d 490, 492 (Fla.
3d DCA 2017).
Accordingly, for the reasons explained above, we agree with the trial
court’s well-reasoned legal analysis and conclusions reached in the order on
appeal.
Affirmed.
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