Third District Court of Appeal State of Florida
Opinion filed January 25, 2023.
________________
No. 3D21-1583 Lower Tribunal No. F10-35759 ________________
Janepsy Carballo, Appellant,
vs.
The State of Florida, Appellee.
An appeal from the Circuit Court for Miami-Dade County, Richard Hersch, Judge.
Law Offices of Aubrey Webb, P.A., and Aubrey Webb, for appellant.
Ashley Moody, Attorney General, and Kseniya Smychkouskaya, Assistant Attorney General, for appellee.
Before LOGUE, MILLER, and BOKOR, JJ.
MILLER, J.
ON MOTION FOR REHEARING We deny the State’s motion for rehearing, withdraw our prior opinion,
and substitute the following opinion in its stead:
Appellant, Janepsy Carballo, challenges the summary denial of her
motion for postconviction relief filed pursuant to Florida Rule of Criminal
Procedure 3.850. In her motion, Carballo alleged, among other grounds,
that her counsel provided her ineffective assistance in advising her not to
testify in her own defense. Because the claim is facially sufficient and not
refuted by the record attachments, we reverse, in part, and remand for further
proceedings. 1
BACKGROUND
The facts require little elaboration. In 2008, two unidentified gunmen
murdered Carballo’s husband and wounded her eighteen-month-old child in
a brazen attack outside of the family residence. Carballo voiced suspicions
that Ilan Nissim, her husband’s former business partner, was behind the
ambush. Less than a month later, Carballo shot and killed Nissim inside her
home. Immediately after the shooting, she fled from the home, discarded
the firearm, and called 911 to report she had been attacked. There were no
eyewitnesses, save Carballo, and no charges were brought at that time.
1 We summarily affirm the remaining claim.
2 Approximately two years later, Carballo made inculpatory statements
about the shooting to an undercover Drug Enforcement Administration
informant investigating abusive prescription practices at pain management
clinics in South Florida. She was subsequently arrested and indicted for first-
degree murder.
Carballo unsuccessfully claimed immunity under Florida’s “Stand Your
Ground” law, 2 and the case proceeded to trial years later before a successor
judge. During the trial, Carballo’s attorney claimed Carballo shot and killed
Nissim in self-defense. Carballo was convicted as charged and sentenced
to life in prison. Her judgment and sentence were affirmed on direct appeal.
See Carballo v. State, 221 So. 3d 700 (Fla. 3d DCA 2017). Claims of
ineffective assistance of appellate counsel were later denied by this court.
See Carballo v. State, 302 So. 3d 347 (Fla. 3d DCA 2019).
Carballo then sought postconviction relief under Florida Rule of
Criminal Procedure 3.850 before yet a third judge. In her motion, Carballo
alleged that her trial counsel provided her with ineffective assistance in
advising her not to testify in her own defense. She specifically asserted that
because she did not testify, the trial judge excluded a myriad of exculpatory
evidence, including the 911 recording, evidence bearing on Nissim’s
2 § 776.032, Fla. Stat. (2012).
3 character, and statements from homicide investigators regarding the
investigation. Without her testimony, she contended, her defense was not
factually or legally viable.
The postconviction court convened a hearing, determined the claim
was facially sufficient, and expressed an inclination to set the matter for an
evidentiary hearing. A later hearing ensued. Carballo was not present, but
both her attorney and the State proposed that the issue of prejudice was ripe
for determination on the cold record of the pre-trial immunity hearing. The
matter was reset for a ruling, at which time Carballo’s trial counsel appeared
before the court and expressed his willingness to testify. The postconviction
court indicated that the motion would be adjudicated without a hearing and
subsequently issued a comprehensive order concluding that because
Carballo’s pre-trial testimony was inconsistent and “highly impeachable,” the
advice not to testify was both reasonable and strategic. The court did not,
however, render any findings as to prejudice. The instant appeal followed.
On appeal, the Public Defender’s Office filed an Anders brief.3
Carballo then retained private appellate counsel and filed an amended brief
alleging, among other grounds, the trial court erred in rejecting her claim on
credibility grounds in the absence of an evidentiary hearing.
3 Anders v. California, 386 U.S. 738 (1967).
4 STANDARD OF REVIEW
We conduct a de novo review of the summary denial of a motion
alleging ineffective assistance of counsel filed pursuant to Florida Rule of
Criminal Procedure 3.850. See Duncan v. State, 232 So. 3d 450, 452 (Fla.
2d DCA 2017). If a motion is facially sufficient, “this court must reverse
unless the postconviction record shows conclusively that the appellant is
entitled to no relief.” Simon v. State, 47 So. 3d 883, 884 (Fla. 3d DCA 2010).
ANALYSIS
To allege a facially sufficient claim for ineffective assistance of counsel,
a defendant must plead sufficient facts to establish that counsel’s
performance was deficient, and that the defendant was prejudiced by the
deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984).
To establish the deficiency prong, the defendant must show “that counsel
made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. The prejudice
prong, in turn, is defined as the “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. Finally, “[a] reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.
5 Under Florida law, a defendant may claim ineffective assistance of
counsel based on interference with the right to testify. See Oisorio v. State,
676 So. 2d 1363, 1364 (Fla. 1996). In this context, erroneously advising a
defendant not to testify has been construed as interference. In Lott v. State,
931 So. 2d 807, 818–19 (Fla. 2006), the Florida Supreme Court set forth a
two-prong test for examining such a claim. “The first step in determining
whether there was ineffective assistance of counsel where defendant claims
he [or she] would have testified is to determine whether the defendant
voluntarily agreed with counsel not to take the stand.” Simon, 47 So. 3d at
885. When that is established, “the trial court must answer the separate and
second question which is whether counsel’s advice to defendant ‘even if
voluntarily followed, was nevertheless deficient because no reasonable
attorney would have discouraged [defendant] from testifying.’” Id. (alteration
in original) (quoting Lott, 931 So. 2d at 819).
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Third District Court of Appeal State of Florida
Opinion filed January 25, 2023.
________________
No. 3D21-1583 Lower Tribunal No. F10-35759 ________________
Janepsy Carballo, Appellant,
vs.
The State of Florida, Appellee.
An appeal from the Circuit Court for Miami-Dade County, Richard Hersch, Judge.
Law Offices of Aubrey Webb, P.A., and Aubrey Webb, for appellant.
Ashley Moody, Attorney General, and Kseniya Smychkouskaya, Assistant Attorney General, for appellee.
Before LOGUE, MILLER, and BOKOR, JJ.
MILLER, J.
ON MOTION FOR REHEARING We deny the State’s motion for rehearing, withdraw our prior opinion,
and substitute the following opinion in its stead:
Appellant, Janepsy Carballo, challenges the summary denial of her
motion for postconviction relief filed pursuant to Florida Rule of Criminal
Procedure 3.850. In her motion, Carballo alleged, among other grounds,
that her counsel provided her ineffective assistance in advising her not to
testify in her own defense. Because the claim is facially sufficient and not
refuted by the record attachments, we reverse, in part, and remand for further
proceedings. 1
BACKGROUND
The facts require little elaboration. In 2008, two unidentified gunmen
murdered Carballo’s husband and wounded her eighteen-month-old child in
a brazen attack outside of the family residence. Carballo voiced suspicions
that Ilan Nissim, her husband’s former business partner, was behind the
ambush. Less than a month later, Carballo shot and killed Nissim inside her
home. Immediately after the shooting, she fled from the home, discarded
the firearm, and called 911 to report she had been attacked. There were no
eyewitnesses, save Carballo, and no charges were brought at that time.
1 We summarily affirm the remaining claim.
2 Approximately two years later, Carballo made inculpatory statements
about the shooting to an undercover Drug Enforcement Administration
informant investigating abusive prescription practices at pain management
clinics in South Florida. She was subsequently arrested and indicted for first-
degree murder.
Carballo unsuccessfully claimed immunity under Florida’s “Stand Your
Ground” law, 2 and the case proceeded to trial years later before a successor
judge. During the trial, Carballo’s attorney claimed Carballo shot and killed
Nissim in self-defense. Carballo was convicted as charged and sentenced
to life in prison. Her judgment and sentence were affirmed on direct appeal.
See Carballo v. State, 221 So. 3d 700 (Fla. 3d DCA 2017). Claims of
ineffective assistance of appellate counsel were later denied by this court.
See Carballo v. State, 302 So. 3d 347 (Fla. 3d DCA 2019).
Carballo then sought postconviction relief under Florida Rule of
Criminal Procedure 3.850 before yet a third judge. In her motion, Carballo
alleged that her trial counsel provided her with ineffective assistance in
advising her not to testify in her own defense. She specifically asserted that
because she did not testify, the trial judge excluded a myriad of exculpatory
evidence, including the 911 recording, evidence bearing on Nissim’s
2 § 776.032, Fla. Stat. (2012).
3 character, and statements from homicide investigators regarding the
investigation. Without her testimony, she contended, her defense was not
factually or legally viable.
The postconviction court convened a hearing, determined the claim
was facially sufficient, and expressed an inclination to set the matter for an
evidentiary hearing. A later hearing ensued. Carballo was not present, but
both her attorney and the State proposed that the issue of prejudice was ripe
for determination on the cold record of the pre-trial immunity hearing. The
matter was reset for a ruling, at which time Carballo’s trial counsel appeared
before the court and expressed his willingness to testify. The postconviction
court indicated that the motion would be adjudicated without a hearing and
subsequently issued a comprehensive order concluding that because
Carballo’s pre-trial testimony was inconsistent and “highly impeachable,” the
advice not to testify was both reasonable and strategic. The court did not,
however, render any findings as to prejudice. The instant appeal followed.
On appeal, the Public Defender’s Office filed an Anders brief.3
Carballo then retained private appellate counsel and filed an amended brief
alleging, among other grounds, the trial court erred in rejecting her claim on
credibility grounds in the absence of an evidentiary hearing.
3 Anders v. California, 386 U.S. 738 (1967).
4 STANDARD OF REVIEW
We conduct a de novo review of the summary denial of a motion
alleging ineffective assistance of counsel filed pursuant to Florida Rule of
Criminal Procedure 3.850. See Duncan v. State, 232 So. 3d 450, 452 (Fla.
2d DCA 2017). If a motion is facially sufficient, “this court must reverse
unless the postconviction record shows conclusively that the appellant is
entitled to no relief.” Simon v. State, 47 So. 3d 883, 884 (Fla. 3d DCA 2010).
ANALYSIS
To allege a facially sufficient claim for ineffective assistance of counsel,
a defendant must plead sufficient facts to establish that counsel’s
performance was deficient, and that the defendant was prejudiced by the
deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984).
To establish the deficiency prong, the defendant must show “that counsel
made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. The prejudice
prong, in turn, is defined as the “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. Finally, “[a] reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.
5 Under Florida law, a defendant may claim ineffective assistance of
counsel based on interference with the right to testify. See Oisorio v. State,
676 So. 2d 1363, 1364 (Fla. 1996). In this context, erroneously advising a
defendant not to testify has been construed as interference. In Lott v. State,
931 So. 2d 807, 818–19 (Fla. 2006), the Florida Supreme Court set forth a
two-prong test for examining such a claim. “The first step in determining
whether there was ineffective assistance of counsel where defendant claims
he [or she] would have testified is to determine whether the defendant
voluntarily agreed with counsel not to take the stand.” Simon, 47 So. 3d at
885. When that is established, “the trial court must answer the separate and
second question which is whether counsel’s advice to defendant ‘even if
voluntarily followed, was nevertheless deficient because no reasonable
attorney would have discouraged [defendant] from testifying.’” Id. (alteration
in original) (quoting Lott, 931 So. 2d at 819).
At trial, Carballo conceded through counsel she fired the shots that
killed Nissim. Thus, the only issue left open for determination was whether
the use of deadly force was justified under the law. Given that there were no
other eyewitnesses to the crime and the admitted forensic evidence was
overwhelmingly inculpatory, without Carballo’s testimony, the jury was
arguably left without a reasonable basis for inferring self-defense.
6 Consequently, Carballo alleged a facially sufficient claim, and we must
examine whether the record attachments refute the assertion that Carballo’s
trial counsel “had an unreasonable assessment of the case by saying that
the State could not succeed.” Simon, 47 So. 3d at 886.
The transcript below reveals that the trial judge questioned Carballo at
trial regarding her decision as to whether to testify. Carballo refused to
confirm whether she had adequate time to discuss her decision with her
attorney or her satisfaction with strategic decisions, but she did confirm she
did not wish to testify. However, because “a defendant’s decision not to
testify at trial does not, as a matter of law, waive a later claim that [her] trial
counsel improperly advised [her] concerning the contours of that right during
trial preparation to the extent that the waiver of that right was not knowing,
intelligent, and voluntary,” the colloquy is not dispositive of the issue at hand.
Riggins v. State, 168 So. 3d 322, 324–25 (Fla. 2d DCA 2015); see also
Torres-Arboledo v. State, 524 So. 2d 403, 410 (Fla. 1988).
Two principles of law guide our further analysis. First, “a trial court may
not summarily deny a rule 3.850 motion on the ground that trial counsel made
a reasonable tactical decision, unless ‘it is so obvious from the face of the
record that trial counsel’s strategy . . . is very clearly a tactical decision well
within the discretion of counsel.’” Reynolds v. State, 227 So. 3d 220, 221
7 (Fla. 5th DCA 2017) (quoting Hannon v. State, 941 So. 2d 1109, 1138 (Fla.
2006)). Second, because of the shortcomings inherent in examining a cold
record without the benefit of the insights gained from viewing live testimony,
a trial judge is ordinarily “not permitted to rule on a matter based on the
credibility of witnesses which the judge has not heard.” Fratello v. State, 950
So. 2d 440, 442 (Fla. 4th DCA 2007). The latter concept applies equally to
postconviction proceedings, but Florida courts have acknowledged a limited
exception may apply where the parties otherwise stipulate. Id.
In the instant case, Carballo’s defense attorney proffered to the
postconviction court that he expected her to testify consistently with her pre-
trial immunity testimony. Although Carballo was not present, he then urged
the court to decide the issue “as is.” Casting aside any concerns relating to
Carballo’s failure to attend the hearing at which her testimony was proffered,
the perceived inconsistencies in the pre-trial testimony are derived from the
denial of the pre-trial immunity motion, and there are no record attachments
establishing that advising Carballo not to testify was a discretionary tactical
decision. 4 See Black v. State, 230 So. 3d 166, 168 (Fla. 5th DCA 2017)
(reversing denial of motion for postconviction relief where trial court
4 Carballo has steadfastly maintained she did not waive her right to an evidentiary hearing.
8 “improperly evaluated [defendant’s] credibility,” and noting, “[g]enerally, an
evidentiary hearing is required to assess the reliability and credibility of
allegations” in a postconviction relief motion); see also Simon, 47 So. 3d at
886 (remanding claim that trial counsel misadvised defendant not to testify
in his own defense for evidentiary hearing); Mims v. State, 656 So. 2d 577,
577 (Fla. 1st DCA 1995) (reversing summary denial of a claim that counsel
was ineffective in failing to honor defendant’s desire to testify where “his alibi
testimony would have corroborated the testimony of the sole defense
eyewitness”); Hicks v. State, 666 So. 2d 1021, 1022–23 (Fla. 4th DCA 1996)
(reversing for evidentiary hearing on appellant’s claims of ineffective
assistance of counsel where record did not refute his allegations that counsel
was ineffective in advising appellant on whether to testify, rendering his
testimony involuntary); Haq v. State, 997 So. 2d 1284, 1286 (Fla. 4th DCA
2009) (finding a claim “that counsel provided [the defendant] ineffective
assistance in ‘misadvising’ him not to testify in support of his ‘mere presence’
defense” required resolution by way of an evidentiary hearing); Loudermilk
v. State, 106 So. 3d 959, 960–61 (Fla. 4th DCA 2013) (reversing and
remanding for evidentiary hearing on defendant’s ineffective assistance of
counsel claim where defendant claimed counsel misadvised him not to
9 testify, and testimony “had the potential to undermine the weight given by his
jury to the victim’s inculpatory testimony”).
Moreover, while a lack of prejudice alone supports a denial of
postconviction relief under Strickland, as the State commendably concedes,
the order on appeal is devoid of any such finding. Accordingly, we are
constrained to reverse, in part, and remand for further proceedings
consistent herewith. Upon remand, any stipulation concerning a testimonial
waiver should occur in Carballo’s presence. See Torres-Arboledo, 524 So.
2d at 410 (quoting Cutter v. State, 460 So. 2d 538, 539 (Fla. 2d DCA 1984))
(“[T]he right to testify . . . may be waived by the defendant’s attorney in the
absence of express disapproval on the record by the defendant . . . . If he
does not agree with his attorney, he must make his objection known . . . . If
he properly objects, the court must allow him to testify.”).
Affirmed in part, reversed in part, and remanded for further
proceedings.