JEFF SCOTT v. THE STATE OF FLORIDA

Third District Court of Appeal
State of Florida
Opinion filed August 17, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1813
Lower Tribunal No. F14-8780
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Jeff Scott,
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, Zachary James, Judge.
Michael Ufferman Law Firm, P.A., and Michael Ufferman
(Tallahassee), for appellant.
Ashley Moody, Attorney General, and Ivy R. Ginsberg, Assistant
Attorney General, for appellee.
Before SCALES, LINDSEY and MILLER, JJ.
ON MOTION FOR REHEARING
PER CURIAM.
We grant Appellant Jeff Scott’s motion for rehearing, withdraw this
Court’s March 23, 2022 unelaborated affirmance opinion, and replace it with
the following:
Appellant challenges the trial court’s November 2, 2020 order
summarily denying Appellant’s postconviction motion. Appellant’s motion
alleged that his trial counsel was deficient for advising Appellant not to testify
at his trial. Attached to the trial court’s order is ample evidence that
Appellant’s decision not to testify was voluntary. The order’s attachments,
however, do not conclusively disprove Appellant’s allegation that no
reasonable attorney would have discouraged Appellant from testifying. We
therefore reverse the challenged order and remand the matter to the
postconviction trial court to conduct an evidentiary hearing to determine
whether Appellant’s trial counsel was deficient in advising Appellant not to
testify. See Hodges v. State, 260 So. 3d 458, 459-60 (Fla. 5th DCA 2018);
Simon v. State, 47 So. 3d. 883, 885-86 (Fla. 3d DCA 2010).
Reversed and remanded with instructions.
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