Maximo Gordon v. State of Florida

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MAXIMO GORDON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D14-4066
[December 2, 2015]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Barbara McCarthy,
Judge; L.T. Case No. 09-18336 CF10A.
Maximo Gordon, Miami, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Maximo Gordon (Gordon) appeals a circuit court order summarily
denying his Florida Rule of Criminal Procedure 3.850 motion. We affirm
in part and reverse and remand on two of the fourteen grounds raised.
Gordon was convicted of fleeing and eluding a law enforcement officer
and sentenced in 2011 to 56.7 months in prison. This Court affirmed his
conviction and sentence in Gordon v. State, 103 So. 3d 231 (Fla. 4th DCA
2012). We affirm without further discussion the postconviction court’s
summary denial of all of the grounds except for numbers two and nine.
In ground two, Gordon claimed ineffective assistance of counsel for
affirmatively misadvising him that if he testified at trial, the prosecution
could introduce the nature of his prior convictions, not just the number of
them. A defendant or other witness can be impeached with evidence that
he has been convicted of a crime punishable by death or prison for more
than one year under the law under which he was convicted, or evidence of
a conviction involving dishonesty or false statement. See § 90.610(1), Fla.
Stat. (2009); Brown v. State, 787 So. 2d 136, 138-39 (Fla. 4th DCA 2001).
Gordon alleged that counsel’s advice was not consistent with this law.
This claim was legally sufficient. We reverse the order summarily denying
it and remand for attachment of portions of the record to refute it or an
evidentiary hearing.
In ground nine Gordon included a claim of ineffective assistance of
counsel for failure to investigate and preserve evidence to support his
defense that police officers had a motive to arrest him, other than his
allegedly unlawful conduct. The State argued this claim involved trial
strategy. It is well-settled that an evidentiary hearing must be held to
evaluate this position. See Rector v. State, 668 So. 2d 1104, 1105 (Fla. 4th
DCA 1996).
As for the included claim of failure to call a particular witness, the State
has acknowledged that the postconviction court erred in summarily
denying relief without affording Gordon leave to amend to allege, if he can
do so in good faith, that the witness was actually available to testify at his
trial. Spera v. State, 971 So. 2d 754 (Fla. 2007); Nelson v. State, 875 So.
2d 579, 583-84 (Fla. 2004). Gordon included other claims under this
ground which were legally insufficient, including a claim of failure to
conduct discovery on whether the police cruisers involved had dashboard
cameras and failure to obtain a “use of force report.” Gordon is entitled to
amend them too, if possible, on remand. We reverse and remand for
Gordon to be afforded leave to amend ground nine and for an evidentiary
hearing if the trial court concludes that any of the claims involved trial
strategy.
In sum, we reverse and remand for further consideration of points two
and nine consistent with this opinion. We anticipate that the trial court
will allow Gordon to amend his claims within point nine, if he can, before
an evidentiary hearing is held on any claims including those involving trial
strategy.
Affirmed in part, reversed and remanded in part.
MAY, DAMOORGIAN and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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