Santos v. State ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed February 4, 2015.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D13-2640
Lower Tribunal No. 12-7730 A
________________
Aurea Santos,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Samantha Ruiz-
Cohen, Judge.
Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public
Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney
General, for appellee.
Before SUAREZ, LAGOA, and SCALES, JJ.
PER CURIAM.
Appellant, Aurea Santos (“Santos”), appeals from the trial court’s order
summarily denying her Motion for Post-Conviction Relief filed pursuant to Florida
Rule of Criminal Procedure 3.850. Because we find that the trial court erred in
denying Santos’s Motion for Post-Conviction Relief without first holding an
evidentiary hearing, we reverse the trial court’s order and remand for further
proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
Santos was charged with one count of dealing in stolen property1 and one
count of unlawfully purchasing regulated metals property.2 Santos pled guilty to
both counts. As a condition of the plea, the trial court withheld adjudication and
sentenced her to three years on probation.
After entering the plea, Santos filed a Motion for Post-Conviction Relief
requesting the right to withdraw her guilty plea pursuant to Rule 3.850. Santos
asserted that trial counsel had not properly advised her of the elements for the
charged offense. In summarily denying the motion, the trial court attached a
transcript of the plea colloquy to its written order. The trial court determined that
Santos knowingly entered the plea, that she understood the nature of the charges
against her and the consequences of the plea, and that Santos waived her right to
require the State prove its case against her beyond a reasonable doubt.
1 Section 812.019(1), Florida Statutes (2012), states: “Any person who traffics in,
or endeavors to traffic in, property that he or she knows or should know was stolen
shall be guilty of a felony of the second degree, punishable as provided in ss.
775.082, 775.083, and 775.084.”
2 Section 538.26(4), Florida Statutes (2012), reads in relevant part: “It is unlawful
for a secondary metals recycler to do or allow any of the following acts . . . (4)
[p]urchase regulated metals property . . . .”
2
II. ANALYSIS
We conclude that the trial court erred in summarily denying Santos’s Motion
for Post-Conviction relief based on ineffective assistance of trial counsel. In
Jacobs v. State, 880 So. 2d 548 (Fla. 2004), the Florida Supreme Court explained
that “if the trial court finds that the motion is facially sufficient, that the claim is
not conclusively refuted by the record, and that the claim is not otherwise
procedurally barred, the trial court should hold an evidentiary hearing to resolve
the claim.” Id. at 551. After reviewing the plea colloquy attached to the trial
court’s order, we conclude that the colloquy does not conclusively refute Santos’s
allegation of ineffective assistance of counsel.
Because the attached plea colloquy to the trial judge’s order does not refute
Santos’s sworn claim regarding ineffective assistance of her defense counsel, the
trial court must conduct an evidentiary hearing. See, e.g., State v. Leroux, 689 So.
2d 235, 237-38 (Fla. 1996) (reversing for evidentiary hearing because plea
colloquy and record did not conclusively refute defendant’s post-conviction relief
claim); Bowers v. State, 862 So. 2d 772, 773-74 (Fla. 4th DCA 2003) (same);
Fisher v. State, 824 So. 2d 1050, 1051-52 (Fla. 3d DCA 2002) (same); Lewis v.
State, 795 So. 2d 1061, 1061-62 (Fla. 4th DCA 2001) (same); Rensoli v. State, 718
So. 2d 1278, 1279 (Fla. 3d DCA 1998) (same); Kit v. State, 654 So. 2d 1235, 1236
(Fla. 2d DCA 1995) (same).
3
Accordingly, on remand, Santos is entitled to an evidentiary hearing to
determine if her allegation is true that trial counsel failed to correctly advise her
regarding the elements of the charged offense. If Santos proves her allegation of
ineffective assistance of counsel, she should be given the opportunity to withdraw
her plea and proceed to trial.
REVERSED AND REMANDED.
4