Opinion
No. 2D21-2961
07-08-2022
Willie Malik JACKSON, Appellant, v. STATE of Florida, Appellee.
Willie Malik Jackson, pro se.
Willie Malik Jackson, pro se.
Willie Malik Jackson appeals the postconviction court's denial of his petition for writ of habeas corpus. We affirm without further comment the denial of each of his claims except one.
Jackson alleged "that counsel failed to convey or advise him of the facts of the charge and the laws in relation to the charge before sentencing nor did counsel convey or advise him or the sentencing judge of any mitigation in relation to the facts of the case."
While habeas corpus is not an appropriate vehicle for seeking postconviction relief, see Hildwin v. Dugger , 654 So. 2d 107, 111 (Fla. 1995) ("Habeas corpus is not to be used for additional appeals of issues that could have been, should have been, or were raised in a 3.850 motion." (emphasis omitted)), the court should have treated Jackson's petition as a postconviction motion timely filed under Florida Rule of Criminal Procedure 3.850, see Houghtaling v. State , 670 So. 2d 1019, 1019 (Fla. 2d DCA 1996) ("[W]e reverse and remand for the trial court to treat Houghtaling's petition as a timely filed motion for postconviction relief."). To the extent Jackson's claims of ineffective assistance of counsel were not insufficient on the face of the motion, the trial court was required to either attach portions of the record conclusively refuting his claims or grant him an evidentiary hearing. See Fla. R. Crim. P. 3.850(f) ; cf. Pylant v. State , 134 So. 3d 533, 534 (Fla. 5th DCA 2014) ("Affirmative misadvice by counsel as to gain time or the actual sentence length is a cognizable basis for postconviction relief, and an evidentiary hearing must be held unless the record conclusively refutes the claim.").
The portions of the record Jackson attached to his motion appear to conclusively refute that his attorney misadvised him "before sentencing" because they indicate that he was sentenced pursuant to a negotiated plea agreement. In the context of the paragraphs of his motion surrounding the claim in question, it is apparent that Jackson's argument—which was buried in a claim with a heading referencing double jeopardy and ex post facto violations—was limited to advice he received immediately prior to and in preparation for the sentencing hearing, as opposed to advice he received prior to entering into the negotiated plea. And the argument included the assertion that Jackson's counsel was deficient for failing to adequately argue mitigation to the sentencing judge. As such, Jackson's argument cannot be read as challenging the voluntariness of his negotiated plea due to ineffective assistance of counsel, but rather as a claim of misadvice and deficient advocacy with regard to sentencing—a claim that would be conclusively refuted by a record that reflected the sentence was a product of a plea bargain as opposed to a discretionary decision of the court upon which counsel's performance could have had some influence.
This court has applied the tipsy coachman doctrine in postconviction cases. See, e.g. , Jacobson v. State , 238 So. 3d 865, 867 (Fla. 2d DCA 2018) (citing Robertson v. State , 829 So. 2d 901, 906 (Fla. 2002) ). And although the trial court did not attach the negotiated plea to its order denying the petition for habeas corpus, it was included as an attachment to Jackson's motion. See generally Tribbitt v. State , 339 So.3d 1029 (Fla. 2d DCA May 4, 2022) ("[W]hen the trial court denies postconviction relief without conducting an evidentiary hearing, 'this [c]ourt must accept [the defendant's] factual allegations as true to the extent they are not refuted by the record .' " (emphasis added) (quoting Tompkins v. State , 872 So. 2d 230, 238 (Fla. 2003) )); Harrell v. State , 338 So.3d 415 (Fla. 5th DCA Apr. 29, 2022) ("To uphold the summary denial of a claim under rule 3.850, the claim must be either legally insufficient, or it must be able to be conclusively resolved as a matter of law or by reliance upon the records in the case ." (emphasis added)).
Nevertheless, Florida Rule of Criminal Procedure 3.850(f)(5) unambiguously and unqualifiedly states that "[i]f the denial [of a rule 3.850 motion] is based on the records in the case, a copy of that portion of the files and records that conclusively shows that the defendant is entitled to no relief shall be attached to the final order ." (Emphasis added). See Ingram v. State , 291 So. 3d 1009, 1011 (Fla. 5th DCA 2020) ("When the summary denial is based on the records in the case, a copy of that portion of the files and records that conclusively show that the defendant is entitled to no relief must be attached to the final order."). Therefore, we must reverse and remand for further proceedings. See Simeon v. State , 273 So. 3d 157, 158–59 (Fla. 3d DCA 2019) ("[A]lbeit somewhat buried in his motion, Simeon did raise a facially sufficient claim of ineffective assistance of counsel, and the trial court's order did not address this claim. ... If, on remand, the trial court denies the claim without conducting an evidentiary hearing, then, in its order, the trial court should attach those portions of the record conclusively showing Simeon is not entitled to relief." (footnotes omitted)). If the postconviction court concludes that Jackson's claim is conclusively refuted by the record, it must attach portions of the record that support such a conclusion.
Affirmed in part, reversed in part, and remanded. CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur.