RODRIGUEZ V. STATE
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2005 MANUEL RODRIGUEZ, ** Appellant, vs. ** ** THE STATE OF FLORIDA, Appellee. CASE NOS. 3D04-1228 3D03-2641 ** ** ** LOWER TRIBUNAL NO. 00-36223 Opinion filed August 31, 2005. Appeals under Florida Rule of Appellate Procedure 9.141(b) (2) from the Circuit Court for Miami-Dade County, Scott Silverman, Judge. Manuel Rodriguez, in proper person. Charles J. Crist, Jr., Attorney General, Barker, Assistant Attorney General, for appellee. and John D. Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ. PER CURIAM. Manuel Rodriguez appeals the denial of his motions for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part. Defendant-appellant Rodriguez was convicted of burglary of a conveyance. His conviction was affirmed on appeal. See Rodriguez v. State, 827 So. 2d 1005 (Fla. 3d DCA 2002). The defendant filed a relief ( First Motion ). motion. timely motion for postconviction He filed a voluntary dismissal of the The trial court overlooked the voluntary dismissal and entered an order denying the First Motion. The defendant appealed. The defendant filed relief ( Second Motion ). defendant has appealed. a second motion for postconviction The Second Motion was denied and the The appeals have been consolidated. The State suggests that in view of the procedural history, the Second Motion is properly viewed as an amended version of the First Motion. We agree. Upon consideration, we conclude that we must reverse the denial order with reference to points five and six of the Second Motion and remand for an evidentiary hearing on those points only. On appeal from a summary denial of a Rule 3.850 motion, this court must reverse unless the postconviction record shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D). In point five of the defendant s sworn Second Motion defendant claims ineffective assistance of trial counsel. He claims that his attorney failed to call several witnesses at 2 trial. that He names several witnesses who he claims would testify they vehicle. dropped him off near the site of the burglarized He maintains they would testify that he never entered the vehicle. This testimony would support the testimony of the defense witness who testified at trial, and contradict that of the police officer who testified at trial. As the present record does not conclusively refute the defendant s claim, we remand for an evidentiary hearing. See Jacobs v. State, 880 So. 2d 548, 553-54 (Fla. 2004); Ford v. State, 825 So. 2d 358, 36062 (Fla. 2002). On point six of the Second Motion, the defendant claims that he was given affirmative misadvice by his counsel regarding the consequences if he chose to testify. He alleges that his counsel told him if he testified the State would be able to place the details of his prior criminal history before the jury. Since such advice, if it occurred, would be incorrect, defendant is entitled to a hearing on that point. State, 901 So. 2d 180 (Fla. 3d DCA 2005). the See Bell v. The defendant also claims that his counsel threatened to withdraw if the defendant took the stand. That claim is also not refuted by the colloquy conducted during the trial, or otherwise refuted by the record now before us. We affirm the denial of postconviction remaining points. 3 relief on the Affirmed in part, reversed in further proceedings consistent herewith. 4 part, and remanded for
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