JORGE CARRILLO v. THE STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: January 18, 2023
• Docket: 21-1133
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 18, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-1133 Lower Tribunal No. F17-19914 ________________

Jorge Carrillo, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Cristina Miranda, Judge.

Law Offices of Kawass, P.A., and Kristen A. Kawass, for appellant.

Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee.

Before EMAS, LINDSEY and GORDO, JJ.

PER CURIAM. Affirmed. See Coutts v. Sabadell United Bank, N.A., 199 So. 3d 1099,

1100 (Fla. 3d DCA 2016) (appellant maintains “that the trial court erred

because it failed to afford the appellant an evidentiary hearing. This

argument is without merit, as [appellant’s trial] counsel affirmatively advised

the court that no evidentiary hearing was necessary and that the issue could

be decided as a matter of law. See Pope v. State, 441 So. 2d 1073, 1076

(Fla.1983) (holding that “[a] party may not invite error and then be heard to

complain of that error on appeal”)); Long v. State, 183 So. 3d 342, 236 (Fla.

2016) (in order to prevail on a postconviction motion seeking to vacate a

judgment and sentence following a plea based upon newly discovered

evidence, the defendant must satisfy two requirements: First, the evidence

must not have been known by the trial court, the party, or counsel at the time

of the plea, and it must appear that the defendant or defense counsel could

not have known of it by the use of diligence. Second, the defendant must

demonstrate a reasonable probability that, but for the newly discovered

evidence, the defendant would not have pleaded guilty and would have

insisted on going to trial”); Grosvenor v. State, 874 So. 2d 1176, 1181 (Fla.

2004) (“[I]n determining whether a reasonable probability exists that the

defendant would have insisted on going to trial, a court should consider the

totality of the circumstances surrounding the plea, including such factors as

2 whether a particular defense was likely to succeed at trial, the colloquy

between the defendant and the trial court at the time of the plea, and the

difference between the sentence imposed under the plea and the maximum

possible sentence the defendant faced at a trial”); McDade v. State, 336 So.

3d 1268 (Fla. 3d DCA 2022) (“Following an evidentiary hearing, we review

the denial of a motion for postconviction relief to determine whether

competent, substantial evidence supports the postconviction court's findings

of fact”) (quoting Forbes v. State, 269 So. 3d 677, 679 (Fla. 2d DCA 2019)).

See also R.O. v. State, 46 So. 3d 124, 126 (Fla. 3d DCA 2010) (“Questioning

may be necessary, in the court's discretion, to ascertain the truth, or to clarify

an issue”); Perry v. State, 776 So. 2d 1102, 1103 (Fla. 5th DCA 2001)

(“Section 90.615(2), Florida Statutes, provides that a court may interrogate

a witness, whether called by the court or a party, when required in the

interests of justice. The purpose is to allow the court to ascertain the truth

and clarify uncertainties. Error is committed only if it appears that the court

has departed from neutrality or has expressed bias or prejudice.”)