Third District Court of Appeal
State of Florida
Opinion filed February 20, 2019.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-1875
Lower Tribunal No. 05-32390
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Elvis Simeon,
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, Dennis J. Murphy, Judge.
Law Offices of Richard Rosenbaum, and Richard L. Rosenbaum (Fort
Lauderdale), for appellant.
Ashley Moody, Attorney General, and Christina L. Dominguez, Assistant
Attorney General, for appellee.
Before LOGUE, SCALES and LINDSEY, JJ.
PER CURIAM.
Elvis Simeon appeals a July 18, 2017 order denying, without an evidentiary
hearing, his Florida Rule of Criminal Procedure 3.850 motion alleging ineffective
assistance of trial counsel. In the rule 3.850 motion, Simeon alleged that defense
counsel provided him with inadequate representation at his October 15, 2015
probation violation hearing. Although the trial court correctly found that most of
the grounds set forth in Simeon’s rule 3.850 motion were either refuted by the
record or legally incorrect1, in its July 18, 2017 order, the trial court did not
address one facially sufficient ground alleged in Simeon’s motion, which, on
remand, the trial court should address.
I. RELEVANT FACTS AND PROCEDURAL BACKGROUND
In September 2006, Simeon was charged by information with second degree
murder with a deadly weapon and possession of a firearm by a convicted felon. In
August 2009, Simeon pled guilty and was sentenced, as a habitual felony offender,
to seven years in prison, with a three-year mandatory minimum, followed by six
years of probation. After serving his prison sentence, Simeon started serving his
six-year probation on November 1, 2012.
The record reflects that, in July 2015, the State filed an amended affidavit of
violation of probation based on technical violations for Simeon’s failure to report
to his probation officer and for Simeon’s moving from his residence without
permission. At the probation revocation hearing, after acknowledging that Simeon
“had some mental problems” and that Simeon had been “Baker Act[ed] at some
1 We affirm the denial of these other grounds without discussion.
2
time,” defense counsel stated that Simeon intended to admit to the technical
violations. After Simeon was duly sworn and he admitted to the technical
violations of his probation, the trial court sentenced Simeon to the twenty-five year
mandatory sentence on the underlying convictions (i.e., for second degree murder
with a firearm and possession of a firearm by a convicted felon).
In June 2017, Simeon, now represented by different counsel, filed a
sprawling, twenty-page rule 3.850 motion asserting multiple grounds.2 In this
sworn motion, Simeon asserted, among other things, that his prior defense counsel
was ineffective for failing to investigate and, at the probation violation hearing,
offer evidence of, Simeon’s mental illness. Specifically, Simeon alleged that he
had been “diagnosed as having a bi-polar disorder and a major depressive
disorder” for which he had been put on several medications to treat. According to
Simeon, he stopped taking his medications for lack of money after he lost his job,
and after he was “kicked out of his house.” Simeon, therefore, was purportedly not
on his prescribed medications when he (a) changed his residence without
permission, (b) failed to report to his probation officer, and (c) entered the open
plea at his violation of probation hearing. Simeon’s rule 3.850 motion asserts that
Simeon’s counsel was ineffective for failing to adequately investigate and advise
2 Simeon’s rule 3.850 motion is labeled as a “Successive Petition for Post-
Conviction Relief Based upon Manifest Injustice.” We note that this was Simeon’s
first post-conviction motion in lower tribunal case number 05-32390.
3
Simeon of possible defenses associated with Simeon’s mental health issues. The
trial court summarily denied Simeon’s motion without addressing this insular
claim.
II. ANALYSIS3 AND CONCLUSION
On this record, we conclude that, albeit somewhat buried in his motion,
Simeon did raise a facially sufficient claim of ineffective assistance of counsel,4
and the trial court’s order did not address this claim. See Medrano v. State,
892
So. 2d 508, 509 (Fla. 3d DCA 2004) (holding that defense counsel was ineffective
for failing to offer evidence of the defendant’s mental illness and treatment at the
probation violation hearing where the defendant’s “mental illness prevented him
from willfully or knowingly violating the terms of his probation”). Accordingly,
we remand to allow the trial court to address this claim in Simeon’s motion.5 If, on
3 “The standard of review of a summary denial of a rule 3.850 motion is de novo.”
Lebron v. State,
100 So. 3d 132, 133 (Fla. 5th DCA 2012). “To uphold the trial
court’s summary denial of claims raised in a 3.850 motion, the claims must be
either facially invalid or conclusively refuted by the record. Further, where no
evidentiary hearing is held below, we must accept the defendant’s factual
allegations to the extent they are not refuted by the record.” Peede v. State,
748
So. 2d 253, 257 (Fla. 1999) (citation omitted).
4 “A violation that causes a revocation of probation must be both willful and
substantial.” Copeland v. State,
864 So. 2d 1197, 1199 (Fla. 1st DCA 2004).
“[M]ental illness . . . can render a technical violation of probation ‘not substantial
or willful because a mental . . . . illness can be debilitating to the point that a
probationer cannot comply with the terms of probation.’”
Id. (quoting Meade v.
State,
799 So. 2d 430, 432 (Fla. 1st DCA 2001)).
5 We express no opinion on the merits of this claim.
4
remand, the trial court denies the claim without conducting an evidentiary hearing,
then, in its order, the trial court should attach those portions of the record
conclusively showing Simeon is not entitled to relief. See Fla. R. Crim. P.
3.850(f)(5).
Affirmed in part, reversed in part, and remanded.
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