Chacon v. State
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JOSE LUCIO CHACON,
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Appellant,
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v.
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STATE OF FLORIDA,
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Appellee.
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________________________________ )
Case No. 2D05-84
Opinion filed August 2, 2006.
Appeal from the Circuit Court for Polk
County; Harvey A. Kornstein, Judge.
Jose Lucio Chacon, pro se.
Charles J. Crist, Jr., Attorney General,
Tallahassee, and Danilo Cruz-Carino,
Assistant Attorney General, Tampa, for
Appellee.
CANADY, Judge.
Jose Lucio Chacon appeals the denial of his motion filed pursuant to
Florida Rule of Criminal Procedure 3.850. The postconviction court summarily denied
four of the five grounds for relief set forth in Chacon's motion. We affirm the denial with
respect to those four grounds without further comment. The trial court denied the fifth
ground—which was based on a claim of newly discovered evidence—after counsel for
Chacon informed the court at a status hearing that there was no "viable witness" to
support the claim of newly discovered evidence. Because we conclude that Chacon's
counsel effectively abandoned the claim, we affirm the denial of the claim of newly
discovered evidence.
Chacon's claim of newly discovered evidence related to exculpatory
statements contained in a letter bearing the signature of "Glenda W." The court ordered
the State to show cause why Chacon was not entitled to relief on his claim of newly
discovered evidence, and the State responded that it could not show cause why
Chacon was not entitled to an evidentiary hearing. The court then entered an order
granting an evidentiary hearing and appointing counsel for Chacon.
At the status hearing—with Chacon present—counsel for Chacon
recounted his efforts to investigate the factual basis for the claim of newly discovered
evidence and informed the court that there was no "viable witness for Mr. Chacon"
because the person believed to be the author of the exculpatory letter had denied
writing the letter and had expressed her disagreement with the exculpatory statements
in the letter. Counsel further explained to the court that he had advised Chacon that it
would be advisable "to withdraw his claim involving this letter."
The court then asked Chacon whether he understood what counsel had
discussed with the court. Chacon responded, "Yes, I understand." The court observed
that "[i]t seems like it would be useless to have a full-blown hearing on this." Chacon
asked, "So how am I going to be able to prove my innocence if that is the only way." He
then launched into a discussion of the proceedings at his trial and a letter from the
mother of the victim—not the letter at issue in his claim of newly discovered evidence.
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At no point in the status hearing did Chacon in any fashion express his
disagreement with his lawyer's characterization of the evidence related to the claim of
newly discovered evidence. Chacon did not inform the court that any witness was
available to support his claim. Nor did he request that additional time be afforded to
locate a witness to support the claim.
Although in this appeal Chacon has suggested that his lawyer had not
correctly identified the author of the letter, Chacon made no such assertion at the status
conference. Chacon certainly made clear that he had a continuing desire to prove his
innocence, but he acquiesced in his counsel's concession that no testimonial support
was available for the newly discovered evidence claim. Furthermore, Chacon did not
express any dissatisfaction with counsel, much less express a desire to discharge
counsel and obtain new counsel or proceed pro se.
Given all these circumstances, the only reasonable conclusion is that
Chacon abandoned the claim of newly discovered evidence because of the lack of
evidence to support the claim. See Vining v. State, 827 So. 2d 201, 214 (Fla. 2002)
(holding that claim was abandoned by postconviction counsel who acknowledged that
she was unable to plead the "factual predicate" necessary to prove claim). As the
postconviction court recognized, it would be an exercise in futility—and a waste of
judicial resources—to conduct an evidentiary hearing on the claim of newly discovered
evidence after counsel's unequivocal concession that there was no evidence to support
the claim. We therefore affirm the denial of Chacon's newly discovered evidence claim.
Affirmed.
ALTENBERND, J., Concurs.
SALCINES, J., Dissents with opinion.
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SALCINES, Judge, Dissenting.
I respectfully dissent. The postconviction court reviewed Jose Lucio
Chacon's motion for postconviction relief and concluded that ground five, alleging newly
discovered evidence, set forth a facially sufficient claim for relief and that an evidentiary
hearing was required. Indeed, in its response to the motion, the State conceded that an
evidentiary hearing was necessary because the record before the court did not
conclusively refute Chacon's allegations of newly discovered evidence. The evidence at
issue was a letter signed by "Glenda W." which essentially stated that the charges
against Chacon had been fabricated by Chacon's ex-wife. In his motion for
postconviction relief, Chacon indicated that the letter was written by his ex-wife's cousin
to a family friend who forwarded it to Chacon.
An order was entered directing that an evidentiary hearing be conducted.
In preparation for the evidentiary hearing, a status conference was conducted. At that
status hearing, postconviction counsel informed the court that he had hired an
investigator who located "the supposed Glenda W. who lived in Alabama." Counsel
stated that when he contacted the woman, she told him she had not written the letter
and did not agree with its content. Counsel indicated that he needed to get a
handwriting expert to examine the letter to determine if it was, in fact, written by the
woman in Alabama and he also needed to conduct a video deposition of the woman.
However, counsel then informed the court that he felt like "we're basically spinning our
wheels" because even if it were proven that the letter had been written by the woman in
Alabama, she would not be a viable witness for Chacon because she did not agree with
the content of the letter. Counsel did not present any evidence other than his unsworn
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statements to support his allegations. There was no testimony of witnesses or written
documentation to support Chacon's counsel's assertions that the woman in Alabama
was actually the author of the letter. In fact, the woman denied that she had written the
letter.
The majority concludes that Chacon abandoned the claim of newly
discovered evidence and acquiesced in his counsel's concession that no testimonial
support was available to support his claim. However, the transcript of the status hearing
reveals that counsel stated that he had called the conference to put on the record
counsel's concerns about expending further resources "which will ultimately not change
the outcome of what decision the Court makes in the end." Counsel informed the
postconviction court that he told Chacon that it would be advisable for him to withdraw
his motion. However, when questioned by the court, Chacon still maintained his
innocence and did not ask to withdraw his motion. Counsel for Chacon did not
thereafter tell the postconviction court that he was withdrawing the motion or otherwise
abandoning the motion on behalf of Chacon.
The postconviction court did not make a finding that the motion was
abandoned or withdrawn but summarily denied the facially sufficient motion without an
evidentiary hearing based upon the oral representations of Chacon's counsel. In my
opinion, this was error. "[I]t is fundamental that . . . representations by counsel not
made under oath and not subject to cross-examination, absent a stipulation, are not
evidence." State v. T.A., 528 So. 2d 974, 975 (Fla. 2d DCA 1988). When a rule 3.850
motion claiming newly discovered evidence is denied without an evidentiary hearing, a
defendant's factual allegations must be accepted as true to the extent that they are not
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refuted by the record. See McLin v. State, 827 So. 2d 948, 954 (Fla. 2002). An
evidentiary hearing is required when the record fails to show conclusively that a
defendant is entitled to no relief. Fla. R. App. P. 9.141(b)(2)(D). The postconviction
court and the State both correctly acknowledged that the record did not refute the
allegations of newly discovered evidence.
Further, the written order denying relief stated that Chacon's counsel had
informed the court that the letter, which was the subject of the motion, "was actually
written and in existence at or before the time of trial in this matter and, therefore, did not
constitute 'newly discovered' evidence." The statements made by Chacon's counsel at
the status hearing at times were unartfully phrased. However, it is clear from the
transcript that he did not state that the June 10, 2002, letter from Glenda W. was written
prior to or at the time of the 1996 trial. Instead, counsel was referencing Chacon's exwife's letters which had been written at the time of trial. The postconviction court's
conclusion that the letter from Glenda W. was not newly discovered evidence is not
supported by any evidence.
If counsel did not wish to represent Chacon any longer, he should have
requested that he be allowed to withdraw and new counsel appointed. In my opinion,
the postconviction court should not have summarily denied the facially sufficient motion
without conducting an evidentiary hearing when nothing supported the denial. The "rule
3.850 motion remains facially sufficient to require an evidentiary hearing." See
Mathews v. State, 870 So. 2d 36, 37-38 (Fla. 2d DCA 2003).
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I would reverse the order denying relief and direct that an evidentiary
hearing be conducted. Only after Chacon is afforded a full evidentiary hearing should
we determine that due process has been satisfied.
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