IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
SOLOMON JASON HARRELL, JR.,
Appellant,
v. Case No. 5D21-674 LT Case No. 05-2016-CF-037245-A
STATE OF FLORIDA,
Appellee. ________________________________/
Opinion filed April 29, 2022
3.850 Appeal from the Circuit Court for Brevard County, Jeffrey Mahl, Judge.
Solomon J. Harrell, Jr., Okeechobee, pro se.
Ashley Moody, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
LAMBERT, C.J.
Solomon Jason Harrell, Jr., was convicted after trial of aggravated
battery with a firearm and aggravated assault with a firearm. The trial court sentenced Harrell to serve ten years in prison, with a ten-year mandatory
minimum provision, for his aggravated battery conviction; and it sentenced
him to a concurrent five years’ imprisonment, with a three-year mandatory
minimum provision, for the aggravated assault conviction. Harrell’s direct
appeal of his convictions and sentences was affirmed by this court without
opinion.1
Harrell thereafter timely filed the instant Florida Rule of Criminal
Procedure 3.850 motion, raising six grounds for postconviction relief.
Harrell’s first claim was based on “newly discovered” evidence, while
grounds two through five sought relief for the alleged ineffectiveness of his
trial counsel. Lastly, ground six of Harrell’s motion asserted a claim of
cumulative error.
The postconviction court entered a final order summarily denying
Harrell’s motion, which he has timely appealed here. Preliminarily, Harrell’s
initial brief filed in this court did not raise any argument regarding the denial
of ground five of his motion. We therefore affirm that part of the order. See
Ward v. State, 19 So. 3d 1060, 1061 (Fla. 5th DCA 2009) (holding that an
appellant abandons his challenge on appeal to those claims summarily
1 See Harrell v. State, 275 So. 3d 1249 (Fla. 5th DCA 2019).
2 denied by the postconviction court in a rule 3.850 proceeding by not
addressing them in his brief). However, for the following reasons, we reverse
the postconviction court’s summary denial of the remaining grounds of
Harrell’s motion and remand for further proceedings.
ANALYSIS—
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. See
Fla. R. Crim. P. 3.850(f)(5). Where, as here, no evidentiary hearing is held
by the postconviction court, an appellate court must accept a defendant’s
factual allegations contained in the rule 3.850 motion, to the extent that the
allegations are not refuted by the record. Peede v. State, 748 So. 2d 253,
257 (Fla. 1999). Further, when the summary denial of the rule 3.850 motion
was based on the records in the case, as was done in the present case, a
copy of that portion of the file and records that conclusively shows that the
defendant is not entitled to relief must be attached to the final order. See
Fla. R. Crim. P. 3.850(f)(5). The appellate standard of review of a rule 3.850
claim that has been summarily denied is de novo. State v. Coney, 845 So.
2d 120, 137 (Fla. 2003).
3 With these principles in mind, we address, in order, the respective
claims made by Harrell that were summarily denied.
GROUND ONE–NEWLY DISCOVERED EVIDENCE
In this first ground, Harrell filed with his motion, as newly discovered
evidence, separate affidavits from two of his neighbors who were purportedly
eyewitnesses to the incident that led to his arrest and subsequent
convictions. These affidavits directly refute and contradict both the victim’s
trial testimony and that of her sister that Harrell was the aggressor that
evening and that he was in possession of and used a firearm during the
alleged commission of these crimes. More particularly, both affiants
affirmatively stated that the victim struck Harrell several times before Harrell
hit back one time in self-defense. Both affiants also averred that Harrell
never possessed a gun during this encounter. Harrell asserted that had this
testimony from these two witnesses been presented at trial, he would have
probably been acquitted.
In Taylor v. State, 260 So. 3d 151 (Fla. 2018), the Florida Supreme
Court concisely set forth its previously announced standard of review
governing claims of newly discovered evidence:
[T]o obtain a new trial based on newly discovered evidence, a defendant must meet two requirements. First, the evidence must not have been known by the
4 trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. Newly discovered evidence satisfies the second prong of [this] test if it “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.” If the defendant is seeking to vacate a sentence, the second prong requires that the newly discovered evidence would probably yield a less severe sentence.
Id. at 158 (internal citations omitted).
In summarily denying this ground of Harrell’s motion, the
postconviction court did not directly address the first prong of the test—
namely, whether these affidavits qualified as newly discovered evidence.
The court did not discuss the issue of whether Harrell or his counsel could
have discovered the affiants through the exercise of due diligence. Instead,
it found that neither affiant “explained [in their respective affidavits] why they
did not come forward until now.” The court further concluded that these
affidavits were conclusively refuted by the trial testimony of the victim and
her sister as to how the incident occurred and would also have had “minimal
impeachment value.”
Our analysis of the court's denial of this ground is directed by the
principles that “[i]n the absence of an evidentiary hearing, courts must
5 accept a defendant's allegations about what a witness might have said at
trial as true unless they are conclusively rebutted by the record” as well as
that “it is improper to summarily dismiss such a ground because the trial
court finds that ‘overwhelming evidence’ was submitted at trial.”
Washington v. State, 323 So. 3d 234, 236 (Fla. 5th DCA 2021) (citing
Jacobs v. State, 880 So. 2d 548, 553–55 (Fla. 2004)). Here, although the
postconviction court did not find the affidavits of the “newly discovered”
witnesses to be inherently incredible, see McLin v. State, 827 So. 2d 948,
955 (Fla. 2002) (explaining that summary denial of postconviction claim may
be warranted “where, from the face of the affidavit, it can be determined that
the affidavit is ‘inherently incredible’”), it nevertheless appears to have
summarily concluded that the victim’s and her sister’s conflicting trial
testimony was more credible than that of the “newly discovered” affiants.
We conclude that the postconviction court erred in this regard as
neither the record attachments to the order nor, for that matter, the court’s
analysis show or explain why the apparent material testimony of Harrell’s
newly discovered witnesses—which, if believed by a jury, could result in an
acquittal or, at the very least, non-mandatory minimum sentences—was
conclusively refuted by the victim’s and her sister’s conflicting or
contradictory trial testimony. The resolution of this claim requires either a
6 hearing or additional record attachments to the order. Cf. Jacobs, 880 So.
2d at 555 (“[A] claim of ineffectiveness in failing to present important
exculpatory evidence cannot be resolved on the basis of the mere existence
of conflicting evidence in the record. Rather, the record evidence must
conclusively rebut the claim if the claim is to be resolved without a hearing.”);
Ciambrone v. State, 128 So. 3d 227, 234 (Fla. 2d DCA 2013) (reversing
summary denial of ineffective assistance of counsel claim alleging that
multiple witnesses would have contradicted and impeached the testimony of
State’s witnesses that the defendant abused the victim). We further
conclude that the postconviction court’s analysis did not conclusively refute
the sufficiently pled claim that Harrell and his counsel did not know about
these affiants and could not have known about them, which, when no
evidentiary hearing is held, must be accepted as true if not conclusively
refuted by the record. See Peede, 748 So. 2d at 257.
We therefore reverse the summary denial of this ground and remand
for further proceedings.
GROUND TWO–COUNSEL’S ALLEGED MISADVICE AS TO THE LIMITS OF IMPEACHMENT IF HARRELL TESTIFIED
Harrell alleged in ground two of his motion that he chose not to testify
at his trial due to his trial counsel’s ineffectiveness in misleading him that, if
7 he testified, the State would be able to cross-examine him not only as to the
number of his prior felony convictions, but also as to the specific nature of
his prior felonies. Harrell averred that, but for counsel’s misadvice, he would
have testified at trial and explained to the jury that he did not have a firearm
and that the victim first hit him on his head and face with her fists, resulting
in his responding in self-defense; and he contended that presentation of that
testimony to the jury would have likely resulted in an acquittal.
To establish an ineffective assistance of trial counsel claim under the
seminal case of Strickland v. Washington, 466 U.S. 668 (1984), a movant,
such as Harrell, must show that “counsel’s performance falls outside the
range of reasonable professional assistance and . . . there is a reasonable
probability that the results of the proceeding would have been different but
for the inadequate performance.” State v. Anderson, 215 So. 3d 181, 183
(Fla. 5th DCA 2017) (quoting Larry v. State, 61 So. 3d 1205, 1207 (Fla. 5th
DCA 2011)). To resolve a facially sufficient claim for ineffective assistance
of counsel, a postconviction court must either hold an evidentiary hearing to
address the claim, or it must attach portions of the record to its denial order
conclusively refuting the defendant’s allegations. Nelson v. State, 73 So. 3d
77, 84 (Fla. 2011).
8 As to the underlying substance of Harrell’s claim in this ground, the law
is clear that the State is limited on cross-examination to asking a defendant
if he or she had previously been convicted of a felony and, if so, the number
of prior felony convictions. See Gavins v. State, 587 So. 2d 487, 489 (Fla.
1st DCA 1991) (holding that “[g]enerally, when a defendant in a criminal case
takes the stand, the prosecutor is permitted to attack the defendant’s
credibility by asking whether the defendant has ever been convicted of a
felony . . . , and how many times. § 90.610, Fla. Stat. (1989)” and that “[i]f
the defendant admits the number of prior convictions, the prosecutor is not
permitted to ask further questions regarding prior convictions, nor question
the defendant as to the nature of the crimes”).
In denying this ground of the motion, the postconviction court attached
to its order the transcript of the colloquy between the trial court and Harrell
during trial when Harrell advised the court that he had elected not to testify.
The court also separately concluded that Harrell became aware that the
State would be limited in its cross-examination of him based on its earlier
questioning of the victim where, during direct examination, the State only
inquired as to the number of the victim’s felony convictions, and not the
specifics of her convictions.
9 The record of the colloquy attached to the denial order does not show
that Harrell had been advised by counsel, or the trial court, that, on cross-
examination, the State could not inquire into the specifics of Harrell’s prior
felony convictions. Nor do we agree with the lower court that because the
record shows that the State questioned its own witness just as to the number,
and not the specifics, of her prior felony convictions, this translated into
conclusively refuting Harrell’s claim that he was misled by his counsel or that
he was otherwise aware that, on cross-examination, the State could not
inquire regarding the specifics of his prior felony convictions.
Accordingly, being presently required to accept, as true, Harrell’s
allegations that he was misled into believing that the State could inquire into
the specifics of his prior felony convictions and that, but for this, he would
have testified at trial in a manner that materially differed from the version of
events testified to by the victim, see Hird v. State, 204 So. 3d 483, 484–85
(Fla. 5th DCA 2016) (“[W]here no evidentiary hearing is held below, we must
accept the defendant’s factual allegations to the extent they are not refuted
by the record.” (quoting Peede, 748 So. 2d at 257)), we agree with Harrell
that the postconviction court erred in summarily denying this ground of his
motion.
10 GROUND THREE–COUNSEL’S FAILURE TO SUFFICIENTLY IMPEACH VICTIM’S TESTIMONY REGARDING PENDING FELONY CHARGES
During his opening statement at trial, Harrell’s counsel reminded the
jury of the importance of using “reasonableness and common sense.” He
then concluded his remarks by telling the jurors that they should not forget
that the victim had “three pending felonies, one of which is a first-degree
felony that she could do up to 30 years on by—by itself, just that one charge,
and it carries with it a $50,000 fine.”
Thereafter, during closing argument, Harrell’s counsel, as part of his
effort to convince or persuade the jury that the victim’s testimony about the
alleged criminal incident was not credible, again reminded the jury to
consider or evaluate the victim’s testimony in light of her three pending felony
charges. This comment was met by timely objection from the State, in which
the State pointed out that no evidence was actually presented during trial
about the victim’s alleged pending felony charges. The trial court sustained
the objection.
Harrell alleged in this ground of his postconviction motion that his trial
counsel was thus ineffective in not presenting the impeaching evidence of
the victim’s pending felony charges, especially after having indicated his
intent to do so during his opening statement. Harrell asserted that,
resultingly, he was prejudiced by his counsel’s error because this evidence
11 would have further damaged the victim’s credibility, creating reasonable
doubt as to his guilt.
The failure to impeach a witness, particularly one who may have a
motive to lie, may constitute ineffective assistance of counsel. See Cipriano
v. State, 883 So. 2d 363 (Fla. 4th DCA 2004). To that end, it is well-settled
that “if a witness for the State were presently or recently under actual or
threatened criminal charges or investigation leading to such criminal
charges,” then “a person against whom such witness testifies in a criminal
case has an absolute right to bring those circumstances out on cross-
examination or otherwise so that the jury will be fully apprised as to the
witness’ possible motive or self-interest with respect to the testimony he
gives.” Morrell v. State, 297 So. 2d 579, 580 (Fla. 1st DCA 1974); accord
Torres-Arboledo v. State, 524 So. 2d 403, 408 (Fla. 1988) (“When charges
are pending against a prosecution witness at the time he testifies, the
defense is entitled to bring this fact to the jury’s attention to show bias, motive
or self-interest.” (citing Fulton v. State, 335 So. 2d 280, 283 (Fla. 1976)));
George v. State, 251 So. 3d 262, 270 (Fla. 3d DCA 2018) (holding “that the
trial court abused its discretion by not permitting the defense to cross-
examine [a witness] regarding his pending criminal charges”).
12 The postconviction court’s summary denial of this ground of Harrell’s
motion provided little substantive analysis as to how it reached its conclusion
that counsel’s performance in failing to impeach the victim regarding her
pending felonies was neither deficient nor prejudicial. Instead, the court
appeared to focus on the fact that the State, during its direct examination of
the victim, brought out that she had also been previously convicted of six
felonies. Although accurate, this observation or finding does not address or
otherwise conclusively refute Harrell’s specific claim here that he was
prejudiced by his counsel’s failure to impeach the victim regarding her
pending felony charges, nor do any of the attachments to the denial order.
We thus reverse the summary denial of this ground. On remand, the court
shall either hold an evidentiary hearing or provide further analysis and record
attachments to its denial order conclusively refuting this specific claim of
prejudice.
GROUND FOUR—COUNSEL WAS INEFFECTIVE FOR FAILING TO FULLY ADVISE HARRELL OF THE STATE’S EVIDENCE PRIOR TO HIS REJECTION OF THE STATE’S FINAL PLEA OFFER
In ground four, Harrell alleged that the State had made him a final
pretrial plea offer of thirty months in prison to resolve this case. Harrell
rejected this offer, resulting in the State “withdrawing” the offer and making
13 no further plea offers. As previously mentioned, Harrell proceeded to trial
and, as a result, is now serving the lengthier ten-year prison sentence.
Harrell raised two sub-claims for relief in this ground. He first alleged
that his counsel was ineffective in failing to apprise him, prior to having to
decide whether to accept the State’s plea offer, of the photographic evidence
of the victim’s injuries that the State intended to present against him at trial.
Second, Harrell asserted that his counsel mistakenly advised him that the
State could not convict him of either the aggravated battery or aggravated
assault charges without first admitting the actual weapon into evidence.
Harrell asserted that he was prejudiced by the aforementioned deficient
performance of counsel because had he been properly advised (1) as to the
existence and extent of the photographic evidence and (2) that he could, in
fact, be convicted of the charged offenses without the firearm being admitted
into evidence, he would have accepted the State’s thirty-month plea offer
and the trial court would have accepted the plea and imposed the negotiated
thirty-month sentence, instead of the ten-year prison sentence that he is
currently serving as a result of rejecting the plea offer and proceeding to trial.
See Alcorn v. State, 121 So. 3d 419, 430 (Fla. 2013).
As to the second sub-claim that counsel misadvised Harrell that he
could not be convicted of the aggravated felony charges absent the gun
14 being admitted into evidence, precedent from this court provides that the
admission of the gun into evidence is not a prerequisite for a conviction.
Specifically, “[i]t is not fatal to the prosecution if the state does not introduce
[a] weapon into evidence. . . . Eyewitness testimony that the defendant
possessed a firearm is sufficient evidence to support a finding that the
defendant was in possession of a firearm.” Akins v. State, 838 So. 2d 637,
639 (Fla. 5th DCA 2003) (citing Fletcher v. State, 472 So. 2d 537, 539 (Fla.
5th DCA 1985); Crump v. State, 629 So. 2d 231, 233–34 (Fla. 5th DCA
1993)).
The postconviction court appears to have inadvertently failed to
address or consider this claim in its denial order. Because Harrell’s claim
that had he not been misadvised by his counsel, he would have accepted
the State’s plea offer, the trial court would have accepted the offer, and he
would have received a less severe sentence was sufficiently pled, see
Alcorn, 121 So. 3d at 430, we reverse and remand for the court to either hold
an evidentiary hearing or to attach record documents to its order that
conclusively refute this sub-claim of ground four.
In summarily denying the first sub-claim asserted in ground four of
Harrell’s motion, the court first noted that the State had provided the
photographs to Harrell’s counsel early on in the case. The court further
15 observed that, just before voir dire, Harrell was present in the courtroom
when his counsel argued a motion in limine to exclude the photographs from
being admitted into evidence. 2 Thus, the court reasoned, Harrell was aware
of the photographs’ existence.
We conclude that the postconviction court’s analysis did not directly
address or conclusively refute Harrell’s claim. Harrell asserted that his
counsel’s ineffectiveness was in not showing him the photographs depicting
the extent of the victim’s injuries prior to him having to evaluate whether to
accept the State’s final plea offer. Harrell necessarily becoming aware of the
existence of the photographs by virtue of a later-filed motion in limine is not
dispositive. See Armstrong v. State, 148 So. 3d 124, 126 (Fla. 2d DCA 2014)
(“In the context of ineffective assistance resulting in the rejection of a plea
offer, ‘[p]rejudice . . . is determined based upon a consideration of the
circumstances as viewed at the time of the offer and what would have been
done with proper and adequate advice.’” (alteration in original) (quoting
Alcorn, 121 So. 3d at 432)).
As neither the denial order nor its attachments conclusively refute this
sub-claim, we reverse and remand for the court either to hold an evidentiary
2 The trial court denied the motion.
16 hearing or to attach additional records to its order that conclusively refute this
sub-claim.
GROUND SIX–CUMULATIVE ERROR
Lastly, in ground six, Harrell sought relief based upon the various
errors allegedly committed as more fully described in the first five grounds of
his motion. The postconviction court, having summarily denied all other
grounds for relief raised in the motion, denied Harrell’s cumulative error claim
as moot.
Because we are reversing the summary denial order regarding
grounds one through four of Harrell’s motion for the reasons just explained,
we reverse the denial of his cumulative error claim as well. See Davidson v.
State, 278 So. 3d 741, 744 (Fla. 5th DCA 2019) (“Last, Appellant asserts a
claim of cumulative error. Because we are reversing and remanding for an
evidentiary hearing as to the two [rule 3.850] claims discussed above, we
likewise reverse the summary denial of the cumulative error claim for further
consideration.” (citing Batista-Irizarry v. State, 266 So. 3d 254, 257–58 (Fla.
5th DCA 2019))); Hempstead v. State, 980 So. 2d 1254, 1265 (Fla. 2d DCA
2008) (holding that the reversal and remand on some of the defendant’s rule
3.850 claims require the reversal of the cumulative error claim).
17 In summary, we affirm the postconviction court’s denial of ground five
of Harrell’s motion. We reverse the summary denial of grounds one through
four and ground six of the motion, and we remand for the lower court to either
attach additional court records to its denial order that conclusively refute
these claims for postconviction relief or to hold an evidentiary hearing.
AFFIRMED, in part; REVERSED, in part; and REMANDED, with
directions.
EISNAUGLE and SASSO, JJ., concur.