JASON VILLATORO v. THE STATE OF FLORIDA

Third District Court of Appeal
State of Florida
Opinion filed November 2, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-0834
Lower Tribunal No. F15-24092A
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Jason Villatoro,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Teresa
Pooler, Judge.
Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant
Public Defender, for appellant.
Ashley Moody, Attorney General, and David Llanes, Assistant Attorney
General, for appellee.
Before FERNANDEZ, C.J., and LINDSEY and LOBREE, JJ.
PER CURIAM.
Jason Villatoro appeals the trial court’s order following an evidentiary
hearing that summarily denied as legally insufficient his Florida Rule of
Criminal Procedure 3.850 postconviction motion. 1 We reverse and remand
for further proceedings.
“Where, as here, an evidentiary hearing is held to resolve a timely,
facially sufficient rule 3.850 postconviction motion, the trial court ‘shall
determine the issues, and make findings of fact and conclusions of law with
respect thereto.’” LaFlippe v. State, 338 So. 3d 348, 349 (Fla. 3d DCA 2022)
(quoting Fla. R. Crim. P. 3.850(f)(8)(A)). “When the trial court fails to do so,
‘the proper remedy is to direct the trial court on remand to determine whether
it can make the necessary findings and conclusions based upon the record
that will show appellant was not entitled to relief.’” Id. (quoting Marcus v.
State, 201 So. 3d 851, 852 (Fla. 1st DCA 2016)). Accordingly, we reverse
the order and remand for the trial court to make the requisite findings of fact
and conclusions of law based on the claim in Villatoro’s rule 3.850
postconviction motion. Reversed and remanded.
1
The only order in the record bears the case number of a companion case
and was rendered on August 23, 2021, almost six months after the March
29, 2021 notice of appeal, with a notation that it was to be nunc pro tunc to
March 3, 2021. The clerk’s handwritten docket insert card reflects that on
February 3, 2021, the matter was reset for ruling on February 17, 2021. The
electronic docket reflects that on February 17, 2021, the motion was denied
and the matter was reset for report re. order on March 3, 2021. No
appearances or minutes entry or transcript in the record reflects the trial
court’s oral ruling, if any, on either February 17, 2021, or March 3, 2021.
2