JOSELITO C. TUALLA v. STATE OF FLORIDA

251 So. 3d 337

• Court: District Court of Appeal of Florida
• Decided: August 3, 2018
• Docket: 17-4429
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

JOSELITO TUALLA, ) ) Appellant, ) ) v. ) Case No. 2D17-4429 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________)

Opinion filed August 3, 2018.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County; Michael F. Andrews, Judge.

Joselito Tualla, pro se.

BADALAMENTI, Judge.

Joselito Tualla, proceeding pro se, filed a motion for postconviction relief

pursuant to Florida Rule of Civil Procedure 3.850, alleging four claims of ineffective

assistance of trial counsel. The trial court summarily denied all four claims. After

careful review of the limited portions of the record attached to the postconviction court's

order, we reverse because the limited record before us does not conclusively refute the claim raised in ground one of Tualla's motion. We affirm the trial court's order in all

other respects.

Where no evidentiary hearing is held on a ground raised in a

postconviction motion, we must accept the defendant's factual allegations to the extent

they are not refuted by the record. Wesby v. State, 230 So. 3d 939, 941 (Fla. 2d DCA

2017) (citing Foster v. State, 810 So. 2d 910, 914 (Fla. 2002)). "We may only affirm a

postconviction court's summary denial if the record conclusively shows that the

appellant is entitled to no relief." Id. (citing Fla. R. App. P. 9.141(b)(2)(D)).

In order to demonstrate that trial counsel was ineffective for failing to

investigate and call a witness at trial, a defendant must identify the witness and the

substance of his or her testimony, state that the witness would have been available to

testify, and explain how the omission of the witness's testimony prejudiced the outcome.

Garrett v. State, 62 So. 3d 1274, 1276 (Fla. 2d DCA 2011) (citing Nelson v. State, 875

So. 2d 579, 582-83 (Fla. 2004)).

Tualla alleged in ground one of his motion that his parents and his former

girlfriend were available to testify and would have provided testimony to rebut the

State's Williams1 rule witness and that their testimony would have changed the outcome

of his trial. In support of its summary denial of ground one, the postconviction court

attached an excerpt of a transcript of a pretrial conference. At that conference, the trial

court remarked that defense counsel had not filed a witness list for Tualla's forthcoming

trial. The trial court asked Tualla if he had advised counsel of any person he wanted to

list as a witness, prompting Tualla to confer with his counsel. Tualla's trial counsel

1Williams v. State, 110 So. 2d 654 (Fla. 1959).

-2- informed the court that after observing the testimony of a witness at an earlier Williams

rule hearing, Tualla believed there was a person who could provide testimony to

impeach that Williams rule witness. Defense counsel explained to the trial court that

because that individual was listed on the State's witness list, defense counsel would

have an opportunity to cross-examine him or her at trial. The identity of that potential

witness was not mentioned during this pretrial conference. Tualla advised the trial court

that he had no other witnesses he wanted to call.

The postconviction court's order fails to conclusively refute the allegations

set forth in ground one of Tualla's motion. The record attachments to the order do not

reveal whether the potential witness to whom trial counsel referred during the pretrial

conference was one of Tualla's parents or his former girlfriend. Moreover, the limited

record before us is unclear as to whether that person was in fact called at trial by the

State, and, if so, cross-examined by Tualla's counsel. With these looming questions left

unanswered by the limited record before us, we reverse the summary denial of ground

one of Tualla's motion. We remand to the postconviction court to either attach portions

of the record that conclusively refute Tualla's claim set forth in ground one or hold an

evidentiary hearing. See Garrett, 62 So. 3d at 1277. We express no opinion as to the

ultimate validity of this ground. We affirm the postconviction court's denial of grounds

two, three, and four of Tualla's motion without comment.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur.

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