Opinion
Case No. 2D07-5664.
Opinion filed July 31, 2009.
Appeal from the Circuit Court for Sarasota County; Rick A. DeFuria, Judge.
Jackson S. Flyte, Regional Counsel, Second District, and Mark P. Brewer, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
Ronald Ray Solorzano appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The postconviction court summarily denied seven of Solorzano's nine grounds for relief and denied the remaining two grounds after an evidentiary hearing. We affirm in part, reverse in part, and remand for further proceedings.
Background
Solorzano was charged with one count of DUI manslaughter and three counts of DUI with serious bodily injury following events that occurred on March 9, 2003. The evidence at trial showed that Solorzano had spent the afternoon and evening of March 9 at Gilligan's Bar with a group of friends and co-workers. At some point in the evening, one of Solorzano's co-workers, Ida D'Ettorre, became too drunk to drive and was feeling ill. Solorzano offered to drive Ms. D'Ettorre home. While doing so, Solorzano lost control of his truck, crossed the center median, and collided with four people on two motorcycles. One of the motorcyclists was killed; the other three suffered serious injuries.
Solorzano's defense at trial was that he was not intoxicated when the accident occurred. He contended that he had had only two or three beers during his six or seven hours at Gilligan's and that he had been eating during that time as well. He contended that he lost control of his truck only because Ms. D'Ettorre vomited on him while he was driving. He also contended that his blood alcohol level was due to his having taken Nyquil for a cold rather than due to his drinking at the bar. The jury apparently rejected these defenses, and it found Solorzano guilty as charged. The trial court sentenced Solorzano to 23.14 years in prison followed by five years' probation. This court affirmed Solorzano's judgment and sentence on direct appeal. Solorzano v. State, No. 2D04-2061 (Fla. 2d DCA June 22, 2005). Solorzano timely filed a motion for postconviction relief, raising nine grounds for relief. The postconviction court summarily denied grounds one, four, five, six, seven, eight, and nine. It held an evidentiary hearing on grounds two and three, after which it denied those grounds as well. We affirm the denial of grounds one, two, three, and nine without further discussion. We also affirm the denial of ground seven, but we write to explain our reasoning. As to grounds four and five, we reverse and remand for these grounds to be stricken pursuant to Spera v. State, 971 So. 2d 754 (Fla. 2007), and we write to explain why we reject Solorzano's request for leave to amend these two claims. Finally, as to grounds six and eight, we reverse and remand for further proceedings.
Ground Four
In ground four of his motion, Solorzano alleged that his trial counsel was ineffective for failing to move to strike prospective juror Wasson for cause after she stated during voir dire that she would want to hear "everything from everybody" before she made a decision. Solorzano alleged that this could be interpreted as Wasson placing the burden on the defense to come forward with testimony and evidence but that trial counsel never questioned Wasson about this. The postconviction court summarily denied this claim, holding that Solorzano's allegations were facially insufficient because he did not allege that Wasson was actually biased as required by Carratelli v. State, 915 So. 2d 1256 (Fla. 4th DCA 2005), review granted, 935 So. 2d 499 (Fla. 2006).
Since the postconviction court issued its order, the supreme court issued its opinion in Carratelli v. State, 961 So. 2d 312 (Fla. 2007). In that case, the supreme court held that "where a postconviction motion alleges that trial counsel was ineffective for failing to raise or preserve a cause challenge, the defendant must demonstrate that a juror was actually biased." Id. at 324. Under this standard, "the defendant must demonstrate that the juror in question was not impartial — i.e., that the juror was biased against the defendant, and the evidence of bias must be plain on the face of the record." Id.
Here, Solorzano's motion does not allege that Wasson was actually biased against him. Instead, Solorzano alleged only that had counsel raised a cause challenge, it would have been granted and another juror would have been chosen to serve on the case. This allegation is legally insufficient under the supreme court's decision in Carratelli.Id. Therefore, Solorzano's motion was facially insufficient on this ground.
That said, however, the postconviction court should have stricken this claim pursuant to Spera rather than denying it. See Spera, 971 So. 2d at 761 (holding that when a ground for relief in a postconviction motion is facially insufficient, the proper procedure is to strike the motion). Further, because the postconviction court did not attach the transcripts of jury selection to its order denying Solorzano's motion, we cannot say that Solorzano's claim of juror bias is conclusively refuted by the record. Thus, we must reverse the denial of this ground and remand for it to be stricken.
In this appeal, Solorzano contends that, pursuant to Spera, he should be granted leave on remand to amend this claim. Id. (holding that a postconviction court abuses its discretion if it does not provide a defendant with at least one opportunity to amend a facially insufficient claim). Under the facts here, we disagree. The reason for this disagreement requires us to discuss theSpera decision in some depth.
Spera Decision
In Spera, the supreme court was faced with the question of the proper scope of leave to amend to be given to a defendant who alleged a facially insufficient claim of ineffective assistance of counsel for failing to investigate witnesses and call them at trial. 971 So. 2d at 755. The Fourth District had held that, under Nelson v. State, 875 So. 2d 579 (Fla. 2004), a defendant given such leave was permitted to remedy only "`technical omissions'" in the motion rather than "a complete failure of pleading." Spera, 971 So. 2d at 755 (citing Spera v. State, 923 So. 2d 543 (Fla. 4th DCA 2006) (en banc)). The Fourth District's interpretation and application of Nelson conflicted with this court's decision in Keevis v. State, 908 So. 2d 552 (Fla. 2d DCA 2005), which had applied Nelson more broadly to allow correction of other pleading deficiencies. Spera, 971 So. 2d at 755. The supreme court accepted review to address this conflict and to establish uniformity in the criminal postconviction process. Id.
After discussing the general pleading requirements of rule 3.850, the court turned to a discussion of the means by which a defendant whose motion is determined to be facially insufficient may correct that insufficiency. The court noted that three means currently exist: by obtaining leave of court to file an amended motion; by filing a second motion in compliance with rule 3.850(f); and by filing an amended motion while the initial motion is pending. Id. at 758-59. As to the second method, however, the court recognized that a procedural gap arises when a defendant files a timely rule 3.850 motion that the postconviction court finds facially insufficient only after the two-year filing period provided in rule 3.850(b) has expired.Id. at 758.
In discussing how this gap arises, the supreme court first noted that rule 3.850(f) specifically permits a defendant to file a second or successive rule 3.850 motion, which can be denied as successive only "`if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits. . . .'"Id. (quoting Fla.R.Crim.P. 3.850(f)). Therefore, "[a] trial court `may not summarily dismiss a successive motion for post-conviction relief that raises issues that were either summarily denied or dismissed for legal insufficiency in the initial motion.'" Id. (quotingChristopher v. State, 489 So. 2d 22, 24 (Fla. 1986)); see also McCrae v. State, 437 So. 2d 1388, 1390 (Fla. 1983) (stating that the prohibition against successive motions applies "only when the grounds raised were previously adjudicated on their merits, and not where the previous motion was summarily denied or dismissed for legal insufficiency");Frew v. State, 947 So. 2d 1275, 1276 (Fla. 2d DCA 2007) (stating that the circuit court's discretion to dismiss a motion as successive under rule 3.850(f) "does not apply when the previous motion was summarily denied or dismissed for legal insufficiency"). Therefore, a defendant whose postconviction claim is denied as facially insufficient has the right under rule 3.850(f) to file a successive motion raising the same claim but remedying the insufficiency.
We recognize that the word "successive" often carries negative connotations in the postconviction arena. However, the word appears to be used in rule 3.850(f) to mean a "second or sequential" motion with no intended negative gloss.
However, as the supreme court also pointed out, "[t]he caveat in the rule . . . is that successive motions must be filed by the two-year deadline in the rule. Thus, defendants whose initial postconviction motions are dismissed as insufficient after the deadline expires cannot avail themselves of the rule." Spera, 971 So. 2d at 759 (citations omitted). Therefore, "[a] gap . . . remains for defendants who file a timely but insufficient initial postconviction motion, but whose amended or successive motion would be filed after the deadline." Id.
The Spera court then discussed its decision in Bryant v. State, 901 So. 2d 810 (Fla. 2005), which addressed a similar gap that existed under rule 3.851, the rule that controls postconviction motions in death penalty cases. The court noted that Bryant had closed this gap for capital defendants by requiring a postconviction court that denies an initial rule 3.851 motion as facially insufficient after the filing deadline has passed to provide the defendant with a reasonable period in which to amend the motion to attempt to cure the facial insufficiency.Spera, 971 So. 2d at 760. The court then held that it would now similarly "close that gap" for defendants filing motions under rule 3.850. Id. at 761. Thus, under Spera, when a defendant's timely initial motion under rule 3.850 is dismissed as facially insufficient after the time for filing a timely amended motion has passed, a postconviction court "abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion." Id.
This discussion in Spera leads us to believe that its "leave to amend" language applies only to cases that fall within this gap period. Interpreting Spera to apply to all facially insufficient rule 3.850 motions, rather than solely those that fall in the gap, would result in two anomalies. First, it would result in a postconviction court being required to provide leave to amend in situations in which the defendant already has leave to amend as a matter of law pursuant to the plain language of rule 3.850(f). Conversely, it would also require this court to find that a postconviction court abused its discretion by not providing leave to amend to a defendant who already has the clear legal right to amend. We do not see how failing to redundantly authorize leave to amend when the defendant has a preexisting legal right to amend can constitute an abuse of discretion.
Second, requiring postconviction courts to grant leave to amend to defendants whose postconviction motions do not fall within the gap period could result in an award of "relief" that would actually shorten the time otherwise available to that defendant in which to file his or her amended motion. Spera provides that a postcon-viction court should grant leave to amend for "`a reasonable period'" which the court expected would be "`between ten and thirty days.'" Id. (quotingBryant, 901 So. 2d at 819). When a defendant, such as Solorzano, files his or her motion before the end of the two-year period under rule 3.850(b), an order limiting the time to amend to thirty days could result in that defendant having less time in which to seek postconviction relief than other defendants. We do not believe that the supreme court intended its decision in Spera to alter the otherwise-applicable time periods provided in rule 3.850 sub silentio. We also do not believe that Spera should be interpreted so narrowly that it prevents a defendant from utilizing the full two-year period provided for in rule 3.850 to amend facially insufficient claims that were timely raised in the first place.
We note that rule 3.850(f) permits the postconviction court to dismiss a successive motion that raises new or different grounds if "the judge finds that the failure of the movant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules." The rule does not contain similar "abuse of procedure" language concerning successive motions that seek to correct facially insufficient claims that were never decided on their merits.
Application of Spera to Solorzano's Case
Here, the gap discussed in Spera did not prevent Solorzano from amending his facially insufficient claim. Solorzano's conviction and sentence became final on July 15, 2005. He filed his rule 3.850 motion on December 27, 2006. The trial court denied grounds four and five by order dated January 18, 2007. At that point, Solorzano had more than six months remaining in which he could have filed a timely amended motion under rule 3.850(f) to cure the facial insufficiency. Accordingly, the postconviction court was not required to grant leave to amend because Solozano already had "leave to amend" under the plain language of rule 3.850(f). See Mancebo v. State, 931 So. 2d 928, 929 (Fla. 3d DCA 2006) ("Because there was no denial on the merits and the 3.850 time limit had not expired, the defendant was allowed to file a second Rule 3.850 motion in an attempt to allege legally sufficient claims.").
Therefore, we reverse the denial of ground four of Solorzano's motion and remand for it to be stricken. The postconviction court may grant Solorzano leave to amend this ground for relief should it choose to do so, but it is not required to do so by Spera.
Ground Five
Ground five of Solorzano's motion is similar to ground four. In ground five, Solorzano alleged that trial counsel was ineffective for failing to question prospective juror Coyne at all during voir dire and that Coyne was subsequently seated on the jury. The postconviction court denied Solorzano relief on this ground because he failed to allege that Coyne was actually biased as required by Carratelli. Like the allegations in ground four, Solorzano's allegations in ground five are facially insufficient under Carratelli. However, as in ground four, the postconviction court should have stricken the claim rather than denying it. Accordingly, for the same reasons discussed in ground four, we reverse the denial of ground five and remand for the postconviction court to strike this ground. Likewise, we note that the postconviction court may, although it is not required to, provide Solorzano with an opportunity to amend this ground if he can do so in good faith.
Ground Six
In ground six of his motion, Solorzano alleged that trial counsel was ineffective for failing to investigate and call "Bartender Dan." Solorzano alleged that Bartender Dan, who was working at Gilligan's on the day in question, would have testified that Solorzano had been drinking only sparingly and that he was not impaired when he left Gilligan's. The postconviction court summarily denied relief on this ground, finding that Bartender Dan's testimony would have been cumulative to testimony presented by Solorzano and Ms. D'Ettorre. We disagree.
Solorzano's defense at trial was that, despite his blood alcohol level, he was not impaired and that the accident was not caused by any impairment. Instead, according to Solorzano, the accident was caused solely by his reaction to Ms. D'Ettorre vomiting on him. In furtherance of this defense, Solorzano testified that while he had had several drinks he was not impaired. He also presented Ms. D'Ettorre's testimony that he was not impaired.
In this ground of his motion, Solorzano alleged that he told his counsel about Bartender Dan, who allegedly would have testified that Solorzano had no more than three drinks during the time he was at Gilligan's and that Solorzano was not impaired when he was there. The postconviction court found that this evidence would be cumulative in light of the testimony presented by Solorzano and Ms. D'Ettorre. However, in light of the source of the proffered evidence, characterizing it as cumulative was improper.
In Skipper v. South Carolina, 476 U.S. 1 (1986), Skipper offered testimony of his "good adjustment" to prison as mitigating evidence during the penalty phase of a capital murder case. The trial court allowed Skipper, his former wife, his mother, his sister, and his grandmother to testify to his adjustment to prison. However, when Skipper sought to call two jailers and a "regular visitor" to the stand to testify to his adjustment to prison, the trial court excluded the testimony as cumulative. The Supreme Court reversed, stating:
The evidence petitioner was allowed to present on the issue of his conduct in jail was the sort of evidence that a jury naturally would tend to discount as self-serving. The testimony of more disinterested witnesses-and, in particular, of jailers who would have had no particular reason to be favorably predisposed toward one of their charges-would quite naturally be given much greater weight by the jury.
Id. at 8; see also Valle v. State, 502 So. 2d 1225, 1226 (Fla. 1987) (finding that proffered evidence was not cumulative when it "differed in quality and substance" from that of the other witnesses).
Here, the testimony offered by Solorzano in support of his defense that he was not impaired was the sort of evidence that a jury would tend to discount. Clearly, Solorzano's own testimony that he was not impaired would be considered self-serving. Further, other evidence had already established that Ms. D'Ettorre was so drunk that she could not walk unaided and that she had been physically ill in the parking lot of Gilligan's. Thus, the jury would likely have tended to discredit Ms. D'Ettorre's recollection and/or interpretation of Solorzano's relative impairment.
Bartender Dan, however, would have been a relatively disinterested witness whose testimony on the issue would have "differed in quality" from that provided by Solorzano and Ms. D'Ettorre and would have been given greater weight by the jury. In light of this difference in the "quality" of the testimony, the postconviction court abused its discretion in finding that Bartender Dan's testimony would have been cumulative and in summarily denying relief on this ground. Therefore, we reverse the summary denial of this ground and remand for an evidentiary hearing.
Ground Seven
In ground seven, Solorzano contends that trial counsel was ineffective for failing to investigate and call as a witness Solorzano's brother, Roger. According to Solorzano, Roger would have testified to both Solorzano's and Ms. D'Ettorre's "demeanors" before they left Gilligan's. The postconviction court denied relief on this ground, finding that Roger's testimony would have been cumulative. The postconviction court is correct on this issue.
Unlike any testimony from Bartender Dan, the testimony that Roger would have allegedly given would not have been different in quality and substance from that given by Solorzano and Ms. D'Ettorre. Because Roger is Solorzano's brother, the jury would have been just as likely to discredit his testimony as it would Solorzano's. Therefore, the postconviction court did not abuse its discretion in finding that Roger's proffered testimony was cumulative and that trial counsel was not ineffective for failing to present this cumulative evidence. Accordingly, we affirm the summary denial of this claim.
Ground Eight
In ground eight of his motion, Solorzano alleged that trial counsel was ineffective for failing to investigate and call as a witness "Fire Medic Ryan Kelleman." According to Solorzano, Fire Medic Kelleman would have testified that Solorzano had vomit on his shirt at the scene, and this testimony would have supported Solorzano's defense that the accident was caused by Ms. D'Ettorre vomiting on him. The postconviction court denied relief on this ground, finding that the proffered testimony would have been cumulative. Like it did in ground six, the postconviction court erred in its analysis of this ground for relief.
At trial, both Solorzano and Ms. D'Ettorre testified that Ms. D'Ettorre vomited in the car and all over Solorzano immediately before the accident. Solorzano's defense was that this unexpected event, and not any alleged impairment, is what caused him to lose control of his truck. However, the State presented the testimony of the investigating police officer, who testified that she neither saw nor smelled vomit on Solorzano's person or in his truck while she was at the scene investigating the accident. In his motion, Solorzano alleged that Fire Medic Kelleman, who was the first medic to arrive at the scene, would have corroborated his testimony that he had vomit all over him.
As with Bartender Dan, Fire Medic Kelleman's proffered testimony would have differed in quality from that of Solorzano and Ms. D'Ettorre. As a medic responding to the scene, Fire Medic Kelleman would have been a disinterested witness whose testimony would allegedly have supported Solorzano's testimony and conflicted with that of the only other disinterested witness, the investigating police officer. Because Fire Medic Kelleman was a disinterested witness, the jury would have been less likely to discredit his testimony concerning whether there was vomit on Solorzano than it would Solorzano's testimony on the subject. Further, because Fire Medic Kelleman was a medic and a first responder, the jury might have been more likely to credit his testimony over that of the investigating officer.
Because Fire Medic Kelleman's alleged testimony would have differed in quality from that given by Solorzano and Ms. D'Ettorre on a disputed issue, the alleged testimony was not cumulative, and the postconviction court abused its discretion in finding that it was. Therefore, we reverse and remand for an evidentiary hearing on this claim.
Affirmed in part; reversed in part; and remanded for further proceedings.
KELLY and KHOUZAM, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED