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Joselito TUALLA, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida, Second District2018-08-03No. Case No. 2D17-4429
251 So. 3d 337

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Opinion

majority opinion

BADALAMENTI, Judge.

Joselito Tualla, proceeding pro se, filed a motion for postconviction relief pursuant to Florida Rule of Civil Procedure 3.850, alleging four claims of ineffective assistance of trial counsel. The trial court summarily denied all four claims. After careful review of the limited portions of the record attached to the postconviction courts order, we reverse because the limited record before us does not conclusively refute the claim raised in ground one of Tuallas motion. We affirm the trial courts order in all other respects.

Where no evidentiary hearing is held on a ground raised in a postconviction motion, we must accept the defendants factual allegations to the extent they are not refuted by the record. Wesby v. State, 230 So.3d 939, 941 (Fla. 2d DCA 2017) (citing Foster v. State, 810 So.2d 910, 914 (Fla. 2002) ). We may only affirm a postconviction courts summary denial if the record conclusively shows that the appellant is entitled to no relief. Id. (citing Fla. R. App. P. 9.141(b)(2)(D) ).

In order to demonstrate that trial counsel was ineffective for failing to investigate and call a witness at trial, a defendant must identify the witness and the substance of his or her testimony, state that the witness would have been available to testify, and explain how the omission of the witnesss testimony prejudiced the outcome. Garrett v. State, 62 So.3d 1274, 1276 (Fla. 2d DCA 2011) (citing Nelson v. State, 875 So.2d 579, 582-83 (Fla. 2004) ).

Tualla alleged in ground one of his motion that his parents and his former girlfriend were available to testify and would have provided testimony to rebut the States Williams rule witness and that their testimony would have changed the outcome of his trial. In support of its summary denial of ground one, the postconviction court attached an excerpt of a transcript of a pretrial conference. At that conference, the trial court remarked that defense counsel had not filed a witness list for Tuallas forthcoming trial. The trial court asked Tualla if he had advised counsel of any person he wanted to list as a witness, prompting Tualla to confer with his counsel. Tuallas trial counsel informed the court that after observing the testimony of a witness at an earlier Williams rule hearing, Tualla believed there was a person who could provide testimony to impeach that Williams rule witness. Defense counsel explained to the trial court that because that individual was listed on the States witness list, defense counsel would have an opportunity to cross-examine him or her at trial. The identity of that potential witness was not mentioned during this pretrial conference. Tualla advised the trial court that he had no other witnesses he wanted to call.

The postconviction courts order fails to conclusively refute the allegations set forth in ground one of Tuallas motion. The record attachments to the order do not reveal whether the potential witness to whom trial counsel referred during the pretrial conference was one of Tuallas parents or his former girlfriend. Moreover, the limited record before us is unclear as to whether that person was in fact called at trial by the State, and, if so, cross-examined by Tuallas counsel. With these looming questions left unanswered by the limited record before us, we reverse the summary denial of ground one of Tuallas motion. We remand to the postconviction court to either attach portions of the record that conclusively refute Tuallas claim set forth in ground one or hold an evidentiary hearing. See Garrett, 62 So.3d at 1277. We express no opinion as to the ultimate validity of this ground. We affirm the postconviction courts denial of grounds two, three, and four of Tuallas motion without comment.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur.

Williams v. State, 110 So.2d 654 (Fla. 1959).