Joseph Luis Levin v. State of Florida , 268 So. 3d 939 ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-5129
_____________________________
JOSEPH LUIS LEVIN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Nassau County.
Robert M. Foster, Judge.
April 22, 2019
PER CURIAM.
The Appellant, Joseph Luis Levin, appeals from an order
denying his postconviction motions brought pursuant to Florida
Rule of Criminal Procedure 3.850. We reverse as to the denial of
the two claims discussed below. As to all other claims, we affirm.
On March 21, 2015, the Appellant pled guilty to six counts of
lewd or lascivious battery, one count of soliciting a child via
computer, and one count of traveling to meet a minor to do
unlawful acts. On July 9, 2015, he was sentenced to a total of 44
years in prison followed by 10 years on sex offender probation.
He subsequently filed a motion to withdraw plea pursuant to
Florida Rule of Criminal Procedure 3.170(l). The trial court
appointed counsel, conducted an evidentiary hearing, and denied
the motion on the merits. This Court affirmed on direct appeal.
See Levin v. State, 195 So. 3d 375 (Fla. 1st DCA 2016) (Table). In
2017, the Appellant filed a motion to correct illegal sentence,
which was summarily denied. This Court affirmed the order of
denial. See Levin v. State, 226 So. 3d 819 (Fla. 1st DCA 2017)
(Table).
That same year, the Appellant filed a timely rule 3.850
motion and a series of amended or supplemental rule 3.850
motions. In two of his claims, he argued that his attorney was
ineffective for failing to investigate his competency and seek a
competency hearing before he entered a guilty plea. He alleged
that in March or April of 2014, he told counsel that he had been
involved in clandestine law enforcement operations in connection
with a phantom hacker. He asserted that counsel became
concerned about his mental health and suggested that he be
evaluated by an expert. He claimed that she did not seek a
competency evaluation until May of 2015, after he had already
pled guilty. He alleged that the expert who evaluated him
determined that he suffered from severe delusional psychosis and
recommended that counsel withdraw his guilty plea. He alleged
that counsel rejected this advice and proceeded to sentencing. He
claimed that since his sentencing in this case, he has been
diagnosed with bipolar disorder and schizophrenia, and he has
been declared incompetent in another case. These allegations
state a facially sufficient and cognizable claim of ineffective
assistance of counsel. See Akins v. State, 247 So. 3d 687, 689 (Fla.
1st DCA 2018); Thompson v. State, 88 So. 3d 312, 319 (Fla. 4th
DCA 2012).
The trial court summarily denied these claims on the basis
that they were or could have been raised in his two prior appeals.
There were no documents attached to support the application of a
procedural bar. This was error. See George v. State, 710 So. 2d
146, 147 (Fla. 1st DCA 1998). Furthermore, insofar as the trial
court denied the claims because they could have been raised in
his previous proceedings, this was also erroneous. See Hutchinson
v. State, 29 So. 3d 1228, 1230 (Fla. 3d DCA 2010) (“Rule 3.800 is
not the proper remedy where issues of waiver, effectiveness of
defense counsel, or voluntariness of a plea are involved.”); Dooley
v. State, 789 So. 2d 1082, 1083-85 (Fla. 1st DCA 2001) (providing
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that because the claim raised in the defendant’s rule 3.850
motion was neither raised in his previous motion to withdraw
plea nor required to be raised in that motion, it was not
procedurally barred).
In response to this Court’s Toler ∗ order, the State concedes
that the record does not support the trial court’s conclusion that
these claims are procedurally barred. Under these circumstances,
we reverse the denial of the specified claims and remand for
further proceedings. If the trial court should again summarily
deny these claims, it should attach records that either support
the application of a procedural bar or conclusively refute the
claims. Otherwise, the trial court should conduct an evidentiary
hearing.
AFFIRMED in part, REVERSED in part, and REMANDED for
further proceedings.
MAKAR, WINOKUR, and M.K. THOMAS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Joseph Luis Levin, pro se, Appellant.
Ashley Moody, Attorney General, and Jennifer J. Moore,
Assistant Attorney General, Tallahassee, for Appellee.
∗
Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986)
(concluding that in a postconviction appeal, a response should be
requested from the state if it appears that the trial court’s order
should be reversed).
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