author: LaROSE, Chief Judge.

text:
    BAYVIEW LOAN SERVICING, LLC, Appellant, v. Huso DZIDZOVIC; East Lake Woodlands Master Association, Inc., a dissolved corporation; Greenhaven Unit One Association, Inc.; Edina Dzidzovic; JPMorgan Chase Bank, National Association, successor in interest by purchase from the Federal Deposit Insurance Corporation, as received for Washington Mutual Bank f/k/a Washington Mutual Bank, FA, Appellees.
    Case No. 2D17-3608
    District Court of Appeal of Florida, Second District.
    Opinion filed June 22, 2018
    Jonathan L. Black of Phelan Hallinan Diamond & Jones, PLLC, Fort Lauderdale, for Appellant.
    No appearance for Appellees.
   LaROSE, Chief Judge.

Bayview Loan Servicing, LLC, appeals the trial court's order granting Huso Dzidzovic's motion to vacate the final judgment of foreclosure and dismissing its foreclosure action. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). The trial court entered the order ex parte without a hearing. Further, no competent substantial evidence supports the order. Consequently, we reverse and remand.

Background

The trial court entered a final judgment of foreclosure against Mr. Dzidzovic. He appealed. By stipulation, the parties voluntarily dismissed the appeal. See Dzidzovic v. Bayview Loan Servicing, LLC, 233 So.3d 1091 (Fla. 2d DCA 2017). Thereafter, the trial court scheduled a foreclosure sale.

Several weeks before the sale and pursuant to Florida Rule of Civil Procedure 1.540(b), Mr. Dzidzovic filed a "motion to vacate final judgment and dismiss action and motion to enforce settlement or in the alternative to reschedule sale date." He alleged that he had entered into a loan modification agreement with Bayview, following the final judgment, that he was in compliance with the terms of that agreement, and that Bayview was imprudently proceeding with the foreclosure sale.

On the same day that the motion was filed, the trial court, without hearing, entered an order granting the motion, vacated the final judgment, and dismissed the foreclosure action. Bayview filed an unsuccessful motion for rehearing.

Analysis

We "review an order granting a [ rule 1.540(b) ] motion ... for abuse of discretion." State Farm Mut. Auto. Ins. Co. v. Statsick, 231 So.3d 528, 531 (Fla. 2d DCA 2017). Thus, we afford the trial court's ruling a degree of deference, such that it will be affirmed unless the "judicial action is arbitrary, fanciful, or unreasonable .... [D]iscretion is abused only where no reasonable [person] would take the view adopted by the trial court." Trease v. State, 768 So.2d 1050, 1053 n.2 (Fla. 2000) (second alteration in original) (quoting Huff v. State, 569 So.2d 1247, 1249 (Fla. 1990) ). The trial court's order is problematic for three reasons.

First, by entering the order the same day the motion was filed, and without giving Bayview an opportunity to be heard, the trial court acted ex parte. This was error. "Due process mandates that in any judicial proceeding, the litigants must be afforded the basic elements of notice and opportunity to be heard." E.I. DuPont De Nemours & Co. v. Lambert, 654 So.2d 226, 228 (Fla. 2d DCA 1995) ; see also Arcila v. BAC Home Loans Servicing, L.P., 145 So.3d 897, 898-99 (Fla. 2d DCA 2014) (reversing trial court's ex parte order vacating an order of dismissal); Shlishey the Best, Inc. v. CitiFinancial Equity Servs., Inc., 14 So.3d 1271, 1274-75 (Fla. 2d DCA 2009) (reversing the trial court's ex parte order granting a motion to vacate a foreclosure sale where the third-party purchaser was provided neither notice nor an opportunity to be heard).

Second, the trial court failed to conduct an evidentiary hearing on the motion. "Where a motion under rule 1.540(b) sets forth 'a colorable entitlement to relief,' the trial court should conduct an evidentiary hearing to determine whether such relief should be granted." Cottrell v. Taylor, Bean & Whitaker Mortg. Corp., 198 So.3d 688, 691 (Fla. 2d DCA 2016) (quoting Chancey v. Chancey, 880 So.2d 1281, 1282 (Fla. 2d DCA 2004) ). Mr. Dzidzovic's allegation that the parties entered a loan modification agreement was a colorable claim for rule 1.540(b) relief. Cf. Nowlin v. Nationstar Mortg., LLC, 193 So.3d 1043, 1045 (Fla. 2d DCA 2016) ("We conclude that there was a valid modification agreement between BAC and the Nowlins and, therefore, the trial court erred in entering the judgment of foreclosure.").

Further, "[a] trial court errs in granting a motion for relief from judgment without affording the opposing party an opportunity to be heard at an evidentiary hearing." Arcila, 145 So.3d at 898 ; see also Novastar Mortg., Inc. v. Bucknor, 69 So.3d 959, 960 (Fla. 2d DCA 2011) (holding that the trial court erred in granting rule 1.540(b)(3) motion to vacate without holding evidentiary hearing where allegations supported granting motion, but opposing party presented conflicting affidavit); Avi-Isaac v. Wells Fargo Bank, N.A., 59 So.3d 174, 177 (Fla. 2d DCA 2011) (reversing and remanding order granting the bank's motion to vacate sale because the purchaser "did not have a meaningful opportunity to be heard when he was denied an evidentiary hearing where he could contest the facts alleged in the affidavit"); McCrea v. Deutsche Bank Nat'l Trust Co., 993 So.2d 1057, 1058-59 (Fla. 2d DCA 2008) (holding that the trial court's failure to conduct a hearing before vacating a prior order of dismissal based upon ex parte communications with only one of the parties improperly excluded the other party from addressing whether the order should be vacated as the product of mistake under rule 1.540(b) ); Monsour v. Balk, 705 So.2d 968, 969 (Fla. 2d DCA 1998) (holding that trial court erred in denying motion for relief from judgment without "conducting an evidentiary hearing to determine whether or not the facts in the affidavits could be proven"); Schuman v. Int'l Consumer Corp., 50 So.3d 75, 77 (Fla. 4th DCA 2010) ("[T]he motion for relief from judgment stated a claim of 'colorable entitlement to relief' that would require the trial court to conduct an evidentiary hearing before dismissing the motion.").

Third, the order is not supported by competent substantial evidence. " 'The making of a contract depends not on the agreement of two minds in one intention but on the agreement of two sets of external signs.' A trial court's finding of a meeting of the minds must be supported by competent substantial evidence." Cheverie v. Geisser, 783 So.2d 1115, 1119 (Fla. 4th DCA 2001) (first quoting Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla. 1985) ; then citing Roggio-Wilgus v. Marlin, 699 So.2d 1050 (Fla. 4th DCA 1997) ). Because there was no evidence demonstrating the existence of a loan modification agreement, the trial court abused its discretion in granting Mr. Dzidzovic's motion. See Sourcetrack, LLC. v. Ariba, Inc., 34 So.3d 766, 768 (Fla. 2d DCA 2010) ("[D]iscretion can only be exercised by a court after it has received competent, substantial evidence permitting a discretionary decision."); see also Rude v. Golden Crown Land Dev. Corp., 521 So.2d 351, 353 (Fla. 2d DCA 1988) ("Absent such evidence, a court's vacation of final judgment constitutes an abuse of discretion.").

Bayview argues that the parties never entered a loan modification agreement. Be that as it may, we are without authority to make such a finding. See Farneth v. State, 945 So.2d 614, 617 (Fla. 2d DCA 2006) ("A fundamental principle of appellate procedure is that an appellate court is not empowered to make findings of fact.");

Douglass v. Buford, 9 So.3d 636, 637 (Fla. 1st DCA 2009) ("Sitting as an appellate court, we are precluded from making factual findings ourselves in the first instance."). The trial court, as fact-finder, must make that determination.

In light of the foregoing, we must reverse the order on appeal and remand for the trial court to conduct a hearing. In doing so, we do not opine on Bayview's contention that Mr. Dzidzovic's motion was time-barred. We note that Mr. Dzidzovic filed his motion over one year after entry of the final judgment of foreclosure. This fact is not necessarily dispositive under rule 1.540(b).

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application.

Fla. R. Civ. P. 1.540(b). Although "[t]he motion shall be filed ... for reasons (1), (2), and (3) not more than 1 year after the judgment ... was entered," the only time constraint for a motion under rule 1.540(b)(5) is that it be filed "within a reasonable time" following entry of judgment. Id. We leave it to the trial court, on remand, to determine the timeliness of the motion in light of an alleged loan modification agreement that may have superseded the foreclosure judgment. See In re Guardianship of Schiavo, 792 So.2d 551, 560 (Fla. 2d DCA 2001) ("[R]ule [1.540(b)(5) ] requires the movant to establish that significant new evidence or substantial changes in circumstances arising after the entry of the judgment make it 'no longer equitable' for the trial court to enforce its earlier order.").

Conclusion

We reverse the order on appeal and remand for further proceedings consistent with this opinion.

Reversed and remanded.

CRENSHAW and LUCAS, JJ., Concur.

      Defaults were entered against the codefendants below, including Edina Dzidzovic. None of the codefendants appeared in this appeal.


source: Caselaw Access Project

author: B.L. Thomas, C.J.

license: Public Domain

text:
    Juan Enrique GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4926
    District Court of Appeal of Florida, First District.
    June 22, 2018 Rehearing Denied August 10, 2018
    Andy Thomas, Public Defender, Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

In this collateral appeal, Appellant argues that his trial counsel was ineffective under the Sixth Amendment to the United States Constitution. Following a jury trial, Appellant was convicted of two counts of capital sexual battery and sentenced to life imprisonment, based on sexual intercourse with a neighbor's ten-year-old daughter. After his judgment and sentence were affirmed on direct appeal, Appellant sought postconviction relief under Florida Rule of Criminal Procedure 3.850, which was denied.

Appellant now challenges the postconviction court's denial of three claims relating to his counsel's representation at trial, as follows: (1) Failure to move to suppress testimony by an investigator who entered Appellant's home without a warrant; (2) failure to have the DNA evidence retested and analyzed by an independent expert; and (3) failure to demonstrate that Appellant's girlfriend could have been the source of the DNA on Appellant's underwear. Because we conclude that Appellant cannot show prejudice from any purported deficient trial representation, we affirm the judgment below denying postconviction relief.

Trial

The victim's mother testified that Appellant had persuaded her to move into a mobile home very near to his mobile home. He was very kind, offering to make repairs to her previous mobile home and otherwise appeared very "cool." On the day of the crimes, Appellant visited her residence and asked to borrow a movie, picking out "Chicken Little." The victim's younger sister then pleaded with her mother to be allowed to watch the movie with Appellant at his mobile home. Finally relenting, but to ensure that the younger sister was not alone at Appellant's home, the mother directed the victim to also go to Appellant's home. Unbeknownst to the mother, however, the younger sister left Appellant's trailer, but the victim did not return home for 20-30 minutes.

The mother testified that when the victim returned home, she appeared afraid and nervous, like a "deer caught in headlights" and her "facial affect and body language" were "completely different" than before she went to Appellant's home. The mother testified that the victim asked "how was her day going," and that the victim had never before asked her such a question. She immediately asked the victim what was wrong, and the victim became even more nervous. She told her mother that "she didn't want to ruin her day." She then told her mother that Appellant had "messed with her."

The impact on the mother was "shock," and she immediately took the victim into a bedroom and asked more specifically what happened. The victim told her that Appellant had put his penis into her vagina and her anus. The mother examined the victim and, after observing what appeared to be injuries, immediately took her to the hospital.

Before they left for the hospital, however, Appellant came back to their mobile home, saying he wanted to "fix the bathroom and so forth." The mother pretended not to know what the victim had reported to her.

As soon as Appellant left, the Mother immediately took her daughter to the hospital, where the victim was examined and interviewed by the Child Protection Team. The mother testified that the victim has since suffered nightmares and attempted to hurt herself after the sexual crimes. She testified that just before trial, the victim's suffering had worsened and she was concerned she might have to "institutionalize" the child.

The victim, age eleven at the time of trial, testified to the events, with the court reporter noting that she was making "unintelligible noises" during her testimony. The victim testified that she "did not want to talk about" the assault, but she confirmed that her mother had told her about "good" and "bad" touches before the crimes occurred. She also confirmed that her mother had told her that if anyone touched her in a "bad" way, she should tell her mother. The victim testified that she knew Appellant as "Juan," and that no one else was with them in the mobile home after her younger sister left. When asked if she would tell the jury what happened in Appellant's mobile home, the child tried to do so but then again made an "unintelligible noise."

The victim, referring to anatomical drawings, then testified that she told her mother that Appellant did something "bad" and "touched me in the privates." She testified that Appellant was on top of her, he pulled her clothes down, and put his penis in her vagina. She testified that he then "made me turn on my side, and he did it on the back." She clarified that Appellant sexually assaulted her "butt." The victim testified that Appellant gave her toilet paper after the assault. When she was confused about what to do, Appellant used the toilet paper to wipe her body. She then ran home to her mother. The victim testified that she was taken to the hospital and the Child Protective Team offices in Tallahassee. She testified that she told them the "truth" and her testimony at trial was the "truth."

The victim identified Appellant through a photograph of how he looked on the day of the crimes. The victim could not identify Appellant at trial. She testified that Appellant was the person who committed the crimes, that she knew him for a "day or two," and that he "fixed things" around the trailer. The victim confirmed that the events occurred in Appellant's mobile home. She also testified that no one else was in the mobile home when Appellant assaulted her, and no one else committed the crimes.

On cross-examination, defense counsel established that on the day of the events, the victim was shown only one picture of Appellant. Defense counsel also elicited testimony that the victim had not volunteered the description of the events to her mother, but that her mother had asked her what happened. Defense counsel also successfully elicited a statement from the child that her mother had "told her" what she "needed to say" in court.

On redirect examination, the prosecutor attempted to clarify that the child had not been told what to say during her testimony, but to answer questions and tell the truth. The child testified that her mother did not tell her to "lie about anything."

Investigator Scott Ivey, a violent crime investigator with the Gadsden County Sheriff's Office, testified that he arranged for the victim to be interviewed by the Child Protection Team in Tallahassee. The interview was conducted in a room where a child can be observed, but cannot see who is observing her. He observed the interview. Investigator Ivey testified that he had the victim's clothing sealed and sent to the Florida Department of Law Enforcement for further analysis.

Investigator Ivey testified that he then instructed a Gadsden County Sheriff's deputy to go to Appellant's mobile home to arrest Appellant. Investigator Ivey instructed the deputy to take a photograph of Appellant. Investigator Ivey showed the photograph of Appellant to the victim, and she identified Appellant as the perpetrator of the crimes. The investigator testified that Appellant looked different at trial than he did in the photograph, and confirmed that the person depicted in the photograph was Appellant.

Investigator Ivey then briefly testified that he entered the mobile home, where he observed it was in "disarray," and took pictures. Investigator Ivey testified that he had obtained information that items had been removed from the trailer before he entered the mobile home.

On cross-examination, defense counsel established that Investigator Ivey did not have a warrant to enter the mobile home but had only been given purported permission by Appellant's girlfriend, Brook Williams, who did not live there. Defense counsel established that the investigator had obtained a search warrant for Appellant's DNA, but did not have a warrant to enter the mobile home. Significantly, defense counsel also elicited testimony from the investigator that he did not remove any bedding, sheets, comforter, or anything of evidentiary value, including the "Chicken Little" video.

The Advanced Nurse Practitioner who examined the victim testified as an expert witness in the field of "forensic analysis of child sexual offenses." She observed lacerations and abrasions to the child's vagina and blood and bruising of the child's rectal area, all of which were recently inflicted and consistent with the substance and timing of the reported sexual offenses. The expert witness further testified that she collected samples from the child's underwear. On cross-examination, defense counsel established that the witness could not testify as to a precise time that the physical injuries were inflicted, but only that she had been told the incident occurred at 1:30, which was consistent with the freshness of the blood she observed. Defense counsel also confirmed that other than the victim informing her that the man's name was "Juan," the nurse had no reason to identify any person who may have committed the sexual abuse.

Suzanne Livingston, an expert witness in DNA analysis with the Florida Department of Law Enforcement, testified that a sample taken from Appellant's underwear included his semen and DNA evidence from another person that "could have come from" the victim. The victim's epithelial cells could have been the "minor donor" to DNA evidence found mixed with Appellant's semen; however, due to the small number of "markers," the expert witness could only testify that in one sample, one in twenty individuals could have produced that DNA. The victim could have been one of those Caucasian females. For the other sample, one in four Caucasian females could have produced that DNA, and the victim could have been one of those females.

On cross-examination, defense counsel elicited testimony from the expert witness that "you can't in fact" testify that the DNA evidence could be identified as the victim's DNA, either in the one-in-twenty sample or the one-in-four sample. Significantly, defense counsel elicited testimony from the expert witness that neither of the "minor donor" samples taken from Appellant's clothing could be linked to the victim, "to the exclusion of other people." Defense counsel also elicited testimony from the expert witness that Appellant's semen was not found on the victim's tested body samples, and no DNA evidence linked to Appellant was procured from the analysis of the victim's body or clothing samples. On re-cross examination, defense counsel established that the witness "can't say that anything found in your examination belongs to" the victim. This was the last statement heard by the jury from the expert witness on the DNA analysis.

The State recalled Investigator Ivey for questioning regarding his earlier testimony that he did not find the "Chicken Little" video in Appellant's mobile home. The investigator testified that when he entered the home the day after the offenses, the TV and video player were missing. On cross-examination, defense counsel established that the day after Appellant was arrested, the investigator entered the mobile home and found the items were missing.

After the State rested, and the trial judge asked Appellant if he was satisfied with his attorney's representation. Appellant answered "perfectly."

In its closing argument, the State described the crimes as crimes of "opportunity," arguing that Appellant exploited the opportunity of being alone with a developmentally delayed child. The State noted that the victim's physical examination by the Child Protection Team corroborated the victim's testimony that a sexual crime occurred. The State acknowledged that no semen was discovered on the victim's body during the examination, but this was not unexpected, as Appellant gave the victim a tissue to wipe her body after the assault. The State did not mention the sheriff investigator's entry into Appellant's mobile home or any missing evidentiary items in the initial closing argument.

The State briefly discussed the combined DNA evidence taken from the semen stain on Appellant's underwear, noting that it could not show the victim was a "major donor," but only a possible "minor donor." The prosecutor argued that there were several loci present which produced the minor-donor profile, that this evidence was consistent with the victim's DNA profile, and that it was important to note the evidence was removed from the semen stain and not from a random location. The State did not emphasize the DNA evidence and acknowledged that it did not conclusively identify the victim in the minor-donor DNA results. The prosecutor stated, "sometimes that's all we have," but "we have a lot more [evidence] than that."

In his closing argument, Appellant's defense counsel argued that the DNA evidence was completely inconclusive and that the State's expert witness changed her description of the probative value of the DNA evidence on cross-examination. Defense counsel also emphasized that the State failed to collect any of Appellant's bedding or the tissue that the victim stated she was given to clean herself. Defense counsel emphasized that he did not "beat up" the child victim, because he was "not that kind of attorney," but that he had only wanted to focus on a few questions. Counsel told the jury that it was not the child who actually created the accusation against Appellant, but her mother.

Defense counsel aggressively criticized Investigator Ivey for failing to take any evidence from Appellant's mobile home for analysis. Counsel emphasized that the investigator failed to produce the "Chicken Little" video allegedly watched.

Defense counsel then emphasized that the victim did not even attempt to identify Appellant at trial. Counsel used the metaphor of the runaway train to attempt to persuade the jury that the underlying investigation was shoddy, that the mother instigated the accusation, and that once she identified Appellant, law enforcement made no legitimate effort to confirm Appellant's guilt. Defense counsel noted that the roommate of the victim's mother was not even called to testify, even though she was present to help examine the child. Counsel also emphasized that no one in law enforcement attempted to speak with Appellant's housemate, "Luis." He also criticized the Advanced Nurse Practitioner regarding her inability to provide a precise answer as to how early in the day the injuries could have occurred.

Defense counsel then criticized the ambiguity of the DNA evidence and the lack of any evidence directly identifying Appellant. Counsel reminded the jurors that they took an oath to base their verdict on evidence, not emotion. Counsel then urged the jurors to not "jump on the train" of the shoddy investigation, and "don't let that train [of inconclusive evidence] drive you into a verdict."

Defense counsel concluded his closing argument by reiterating that there was no evidence removed from Appellant's mobile home, no photographs of Appellant's bedroom where the crimes allegedly occurred, and no evidence of any clothes on the floor of Appellant's mobile home. Counsel again stated that the victim used words that she likely heard from her mother. Finally, defense counsel concluded by urging jurors to do their job and find Appellant not guilty, because the case was based only on an "accusation," not evidence.

In rebuttal closing argument, the State emphasized that the prosecution's burden of persuasion was to prove the case beyond a reasonable doubt, not to an absolute certainty. The prosecutor mentioned the missing television and video player, along with the testimony that Appellant had the child wipe away evidence of the sexual assault. The State also noted that Appellant had significantly changed his appearance for trial, "with glasses on, head shaved, mustache, a lot different than he look[ed at the time of the offense]." The prosecutor concluded by noting that it was uncontroverted that Appellant's housemate was at work the day of the crimes, that it was Appellant who came over to the victim's mobile home that day and borrowed the movie, that the other evidence corroborated the victim's testimony, and that the jury should find Appellant guilty.

The jury convicted Appellant of both counts of capital sexual battery. The trial court imposed consecutive mandatory life sentences, stating it considered both counts worthy of separate life sentences. This court affirmed the convictions and sentences, without opinion. Gonzalez v. State, 45 So.3d 464 (Fla. 1st DCA 2010) (table).

Postconviction Evidentiary Hearing

Appellant filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, alleging ten grounds, including his claims that counsel was deficient for (1) failing to move to suppress Detective Ivey's testimony about the unlawful entry; (2) failing to have the DNA evidence retested by an independent expert to conclusively include or exclude the victim as a contributor; and (3) failing to demonstrate that Brook Williams could have been the source of the DNA, by calling her as a witness to testify that she and Appellant had a sexual encounter the morning of the batteries, and having her DNA analyzed.

At an evidentiary hearing on the motion, Appellant's defense counsel, Adam Ruiz, estimated that he met with Appellant twice before trial and had his investigator meet with him two or three times. Ruiz's investigator put together a report after speaking with Appellant. Ruiz said he does not generally take depositions in criminal cases. During his pretrial investigation, Ruiz did not learn that Detective Ivey had gone into Appellant's home, and he therefore had not moved to suppress the detective's statements. Ruiz was surprised when the testimony came out at trial that Detective Ivey had gone into the residence and discovered Appellant's TV and video player were missing, and said he thought the State was surprised, too. Ruiz agreed that if he had deposed Detective Ivey, that information would likely have come out and he may have filed a motion to suppress.

Ruiz acknowledged that the State suggested at trial that the items were missing because Appellant was destroying evidence. Ruiz said it turned out someone who knew that Appellant was in jail was "borrowing" items from the home, but that explanation never came out at trial. But he said he did not think testimony that the TV and VCR were missing had nearly the impact as the victim's testimony, stating "her testimony killed [Appellant], in my professional opinion."

As to presenting potential witness Brook Williams to testify regarding her sexual activity with Appellant on the day of the crimes, Ruiz said he did not recall Appellant telling him about her, although he was not sure and he thought his investigator might have spoken to Williams. Ruiz testified that although the DNA markers matching the victim could have matched one in fourteen people, he never considered obtaining Williams' DNA, because he did not think it would "change the course of things" based on the other evidence, such as the fact that the child had alleged Appellant made her clean herself after forcing her to engage in sexual activity. Ruiz said, "The testimony of the victim in the case was, to put it mildly, it was brutal for the defense." Ruiz thought he recalled that several jurors were moved to tears during the victim's testimony.

Appellant testified that Ruiz was helpful and attentive when they met, but was always in a hurry. Appellant said he gave Ruiz "the whole story" of what occurred the day of the alleged batteries, "starting with when Brook Williams arrived at the house that morning." Appellant testified that he told Ruiz or his investigator that he had sex with Williams that day and gave them information to contact her, but he did not know whether they ever spoke to her.

After hearing argument, the court indicated that it would read the trial transcript, which had been submitted into evidence, before making a decision. The court later denied relief on all grounds.

As to the claim regarding Detective Ivey, the court found that defense counsel was deficient for failing to seek suppression of the testimony, based on the investigator's unlawful entry. The court found that despite defense counsel's efforts to "make an issue" of the improper search, the proper action would have been to file a motion to suppress. However, the court found the deficient performance did not undermine confidence in the outcome of the trial, because there was nothing of value found in the home, and the State's suggestion in rebuttal argument that nothing was found because Appellant destroyed evidence would not have affected the outcome in light of the victim's testimony.

As to Appellant's arguments regarding additional DNA testing and potential testimony by Brook Williams about sexual contact with Appellant, the trial court found that, even if counsel was deficient for failing to pursue these issues, it would not have undermined confidence in the outcome in light of the other physical evidence and eyewitness testimony. The trial court also relied on the previous rejection of Appellant's request for DNA testing under Florida Rule of Criminal Procedure 3.853.

Analysis

To be entitled to relief on a postconviction claim, the defendant must demonstrate that counsel's performance "fell below an objective standard of reasonableness" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington , 466 U.S. 668, 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because the defendant must prove both deficient performance and prejudice, we address this case without deciding whether the trial court's findings as to any deficient performance by defense counsel are supported by competent, substantial evidence. See State v. Anderson, 215 So.3d 181, 183 (Fla. 5th DCA 2017) ("Ineffective assistance of counsel claims present mixed questions of law and fact. Deference is given to the postconviction court's factual findings if they are supported by competent substantial evidence in the record." (citations omitted) ).

We focus instead on whether any alleged deficient performance by counsel actually prejudiced Appellant-that is, whether "there is a reasonable probability that the results of the [trial] would have been different but for the inadequate performance." Id. (emphasis added) (quoting Larry v. State, 61 So.3d 1205, 1207 (Fla. 5th DCA 2011) ). Our supreme court has held that where a criminal defendant cannot show prejudice-that is, where evidence of guilt is overwhelming and where there is no reasonable probability that absent any deficient performance by defense counsel a defendant would have been acquitted, a claim of ineffective assistance of counsel must be denied. Williamson v. State , 123 So.3d 1060 (Fla. 2013) ("A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.") (quoting Maxwell v. Wainwright , 490 So.2d 927, 932 (Fla. 1986) ).

We do not necessarily agree with the trial court's conclusions that defense counsel rendered deficient performance by failing to move to suppress the investigator's testimony that he unlawfully entered Appellant's mobile home. But we do agree with the trial court on all of its findings that any purported deficient legal representation did not prejudice Appellant, because there is no reasonable probability that Appellant would have been acquitted.

This is necessarily true because, as defense counsel testified at the postconviction evidentiary hearing, the child victim's testimony was no doubt "brutal" for Appellant, which our reading of the trial transcript confirms, to the extent a transcript can convey such an impression. This is not a case where a victim delayed in reporting her victimization for years (which is not uncommon), or where there is no expert testimony confirming that sexual abuse likely occurred. Rather, this is a case where the young child let her mother know immediately that something very wrong had occurred. The child knew the difference between "good" and "bad" touches, the mother confirmed signs of sexual abuse immediately, and those observations were promptly confirmed by an Advanced Nurse Practitioner who was an expert in physical symptoms of child sexual abuse.

The jury had overwhelming evidence on which to find Appellant guilty. To the extent that defense counsel may have provided better representation, it would not have changed the outcome of the trial. Assuming arguendo that Williams would have testified that she and Appellant had sexual intercourse the day of the crimes, and that the minor-donor DNA evidence was conclusively connected to Williams, such evidence would not have persuaded any rational jury to acquit Appellant, because it would not have contradicted the victim's testimony that Appellant committed two acts of capital sexual battery later that day.

Nor would the exclusion of Investigator Ivey's testimony have led to a different outcome. "Claims of prejudice under Strickland are routinely rejected where, as here, the totality of the evidence of guilt so dictates." Williamson , 123 So.3d at 1066. Here, the child's testimony was corroborated in almost every manner possible, including prompt reporting, confirmation of relevant injuries by an expert witness, including fresh blood observed from the sexual trauma, and the incontrovertible evidence that the victim went to Appellant's home. Thus, because there could be no prejudice here, the trial court's order denying postconviction relief on the claim of ineffective assistance of counsel must be affirmed.

AFFIRMED.

Wolf, J., concurs; Ray, J., concurs in result only.

      Appellant also filed a motion for postconviction testing of DNA evidence under Florida Rule of Criminal Procedure 3.853, alleging that the DNA analysis admitted at trial was inconclusive and newer techniques would likely produce a better result. In his 3.853 motion, Appellant asserted that additional testing would reveal that DNA found in his underwear belonged to Brook Williams and not to the victim, claiming this would prove that he did not commit a sexual battery against the victim. In response, the State argued that proof of Williams' DNA in the sample would not disprove that Appellant committed the sexual batteries. The trial court denied relief, concluding that because the DNA evidence "was only minimally helpful in establishing identity to begin with," it would not support a determination of innocence even if it excluded the victim. This court affirmed the trial court's order denying Appellant's motion for additional DNA testing, without opinion. Gonzales v. State , 145 So.3d 834 (Fla. 1st DCA 2014) (table). This court has affirmed other orders denying Appellant's attempts to seek collateral relief, all without opinion. Gonzalez v. State, 91 So.3d 137 (Fla. 1st DCA 2012) (table) (challenging order granting relief regarding credit for time served); Gonzalez v. State, 91 So.3d 137 (Fla. 1st DCA 2012) (table) (challenging life sentences as illegal "indefinite" sentences). We take judicial notice of our court files in these cases. See Schneider v. Schneider , 189 So.3d 276, 278 (Fla. 1st DCA 2016).

      The judge hearing the motion had not presided at the trial.

      We note that defense counsel's apparent practice of declining to conduct pretrial depositions can be an effective tactic, depending on the facts of a case, as it can sometimes be to a defendant's advantage to prepare a defense by investigating the facts without utilizing depositions, which can inform prosecutors of a defense strategy or memorialize important information prosecutors may later use to prepare their case. We also note that defense counsel performed well in emphasizing that the investigator failed to seize any evidence, take photographs, or collect information from Appellant's mobile home. This was helpful to the defense in its argument that the case was a runaway train, based on nothing but an accusation. However, we need not determine whether defense counsel was deficient in failing to learn of the investigator's unlawful entry, as we focus our analysis on the lack of prejudice to Appellant.


author: Osterhaus, J. Makar, J., concurring.

text:
    Osakatukei O. OMULEPU, M.D., Appellant, v. DEPARTMENT OF HEALTH, BOARD OF MEDICINE, Appellee.
    No. 1D17-1571
    District Court of Appeal of Florida, First District.
    June 22, 2018
    Monica L. Felder Rodriguez, Rodriguez & Perry, P.A., Coral Springs, for Appellant.
    Sarah Young Hodges, Chief Appellate Counsel; Carrie B. McNamara, Katelyn R. Boswell, and Mari H. McCully, Assistant General Counsels, Florida Department of Health, Tallahassee, for Appellee.
   Osterhaus, J.

Dr. Osakatukei Omulepu appeals a final order of the Board of Medicine revoking his license to practice medicine. Dr. Omulepu argues that the decision violated his Fifth Amendment rights by incorporating an adverse inference against him based on his decision to remain silent at his formal hearing in response to evidence of medical malpractice. He argues additionally that the administrative complaint failed to properly charge him and that the evidence did not support the charges filed by the Department of Health. We disagree with these arguments and affirm.

I.

In 2016, the Department filed an administrative complaint against Dr. Omulepu seeking disciplinary action against his medical license. The Department alleged in a nine-count complaint that Dr. Omulepu violated § 458.331(1), Florida Statutes (2014). According to the allegations, during a three-day period in May 2015, four of Dr. Omulepu's liposuction patients experienced severe post-surgery complications requiring hospitalization. The Department asserted that in all four cases, Dr. Omulepu deviated from the standard of care by using an improper concentration of epinephrine in a surgical solution that is used to reduce bleeding and failing to maintain accurate medical records of the concentration of epinephrine. See § 458.331(1)(m) & (t), Fla. Stat. It also alleged medical malpractice against Dr. Omulepu for puncturing the internal organs of two of the patients. See § 458.331(1)(t), Fla. Stat.

The complaint led to a formal hearing before an administrative law judge in October 2016. After the hearing, the ALJ issued recommended findings of fact and conclusions of law that Dr. Omulepu committed medical malpractice and violated the medical records law. Specifically, the ALJ found that Dr. Omulepu committed medical malpractice by puncturing the internal organs of two patients by an "improper angling of the cannula during the procedures." In reaching this conclusion, the ALJ relied partly upon an adverse evidentiary inference against Dr. Omulepu because he declined to testify or explain how the organ punctures occurred. In addition, the ALJ found in Dr. Omulepu's favor as to the charges of using an improper concentration of epinephrine to control bleeding in four patients, but found that he failed to create and keep medical records accurately reflecting the concentration of epinephrine given to them. The ALJ recommended that Dr. Omulepu be disciplined with a fine, probation, and costs.

The Board of Medicine then took up the recommended order, approving and incorporating almost all of it into its Final Order. The Board rejected, however, the discipline recommended by the ALJ. Due to the severity of the injuries to Dr. Omulepu's patients within the span of a single day, it decided to revoke his license to practice medicine. Dr. Omulepu timely appealed.

II.

A.

Dr. Omulepu contends first on appeal that the Board erred by accepting the ALJ's adverse inference because he remained silent about the medical malpractice charges at his formal hearing. He asserts that this adverse inference violated his right not to incriminate himself under the Fifth Amendment to the United States Constitution. We disagree.

The Fifth Amendment states that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. This privilege may be asserted in proceedings to protect "against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used." Kastigar v. United States , 406 U.S. 441, 445, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). In the criminal context, the defendant's silence may not be considered as evidence of guilt. Marston v. State , 136 So.3d 563, 569 (Fla. 2014) (quoting Griffin v. California , 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) ).

The Florida Supreme Court has recognized the Fifth Amendment right against self-incrimination to apply in the context of professional license revocation cases because they are "penal" in nature. State ex rel. Vining v. Fla. Real Estate Comm'n. , 281 So.2d 487, 491 (Fla. 1973). Agreeing that Vining applies here, the Department asserts that the scope of the Fifth Amendment's protection is nevertheless circumscribed in civil cases like this one. It argues that, unlike the criminal context, the Fifth Amendment protection in civil cases allows fact-finders to consider a defendant's silence as evidence of guilt. The Department's argument is backed by the opinion of the United States Supreme Court in Baxter v. Palmigiano that "the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them." 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). Various federal courts have noted that Baxter applies "forcefully in medical discipline cases." Arthurs v. Stern , 560 F.2d 477, 478 (1st Cir. 1977) (agreeing with Baxter in a medical disciplinary proceeding that "the trier of fact [may] treat silence as evidence of guilt"); see also MacKay v. Drug Enf't Admin. , 664 F.3d 808, 820 (10th Cir. 2011) (citing Baxter and affirming the revocation of a medical doctor's registration to dispense controlled substances). Florida cases also echo the rule from Baxter . See, e.g., Vasquez v. State, 777 So.2d 1200, 1203 (Fla. 3d DCA 2001) ; Atlas v. Atlas , 708 So.2d 296, 299 (Fla. 4th DCA 1998). The Florida Supreme Court in Boedy v. Department of Professional Regulation, 463 So.2d 215, 218 (Fla. 1985) for example, found it constitutionally permissible to deny authority to practice medicine "to a physician who asserts the privilege against self-incrimination if his claim has prevented full assessment of his fitness and competency to practice." The Boedy opinion noted that

[w]hen a conflict arises between the right of a physician to pursue the medical profession and the right of the sovereignty to protect its citizenry, it follows that the rights of the physician must yield to the power of the state to prescribe reasonable rules and regulations which will protect the people from incompetent and unfit practitioners.

Id. at 217 ; cf. , Borrego v. Agency for Health Care Admin. , 675 So.2d 666, 668 (Fla. 1st DCA 1996) (affirming the revocation of a medical license against a Fifth Amendment double jeopardy claim because the sanction was "remedial rather than punitive," and noting that a medical license "is ... a privilege granted by the sovereign, which may be withdrawn to 'preserve the public health, morals, comfort, safety and the good order of society' ") (quoting State ex rel. Munch v. Davis , 143 Fla. 236, 196 So. 491, 493-94 (1940) ).

In this case, the Department presented competent, substantial evidence that Dr. Omulepu committed malpractice by puncturing the organs of two patients during their cosmetic surgery procedures. In the face of this evidence, Dr. Omulepu exercised his Fifth Amendment right to remain silent. He wasn't forced to waive this right. In view of his silence, the ALJ applied an adverse inference, citing Baxter . The ALJ and Final Order did not, however, as a "consequence of [Dr. Omulepu's] silence automatically [find him] guilty of the infraction with which he has been charged." Baxter , 425 U.S. at 317, 96 S.Ct. 1551. Rather, the adverse inference combined with other probative evidence that advanced the Department's case-expert testimony identifying the improper angling of the cannula, multiple punctures of patient organs, and Dr. Omulepu's admission to a patient's mother that he'd "messed up" with a new cannula-supported the Board's ultimate decision. Under these circumstances, the adverse inference drawn by the ALJ, and accepted by the Board's Final Order, did not violate Dr. Omulepu's Fifth Amendment rights.

B.

We likewise affirm with respect to Dr. Omulepu's other claims involving the sufficiency of the evidence and alleged disparities between the administrative complaint and evidence deduced at the hearing. We recognize that a physician may not be "disciplined for an offense not charged in the complaint." Trevisani v. Dep't of Health , 908 So.2d 1108, 1109 (Fla. 1st DCA 2005) ; Ghani v. Dep't of Health , 714 So.2d 1113 (Fla. 1st DCA 1998). An administrative complaint must "afford 'reasonable notice to the licensee of facts or conduct which warrant' disciplinary action." Cottrill v. Dep't of Ins. , 685 So.2d 1371, 1372 (Fla. 1st DCA 1996) (quoting § 120.60(5), Fla. Stat.). Here, contrary to Dr. Omulepu's assertions, the administrative complaint did not fail to notice the charges against him. The violations found by the Board-medical malpractice in puncturing the internal organs of patients (see counts I and II of the Second Amended Complaint), and failing to create or maintain accurate records regarding the concentration of epinephrine used (see counts VI through IX)-were consistent with the allegations, which also were proven with competent, substantial evidence.

III.

For these reasons, we affirm the Board of Medicine's final order.

Lewis, J., concurs; Makar, J., concurs with opinion.

Makar, J., concurring.

Today's decision holds for the first time that a physician's exercise of his constitutional right against self-incrimination permits an adverse inference to be drawn against him in an administrative disciplinary action based on his failure to use reasonable care in treating patients. Guidance is long overdue on this topic. The practice has been to permit administrative law judges to draw adverse inferences from a physician's silence, but when and how that is done is filled with nuance, qualifications, and unanswered questions. See generally Matthew C. Lucas, Balance of Silence: Weighing the Right to Remain Silent Against the Right of Access to Florida Civil Courts , 22 U. FLA. J.L. & PUB. POL'Y 1 (2011) (overview of three important issues that arise when the Fifth Amendment privilege is invoked in civil proceedings: "(i) whether to stay the civil lawsuit prior to the completion of parallel criminal proceedings; (ii) how to weigh discovery disputes and access to information against a party's Fifth Amendment privilege; and (iii) what substantive effect, if any, a litigant's refusal to testify has on the outcome of the civil proceedings").

The "constitutional struggle" between a litigant's right to remain silent and society's interest in adjudicating a civil dispute, as Judge Lucas framed it in his article, id. at 23-24, arises "in even more pronounced ways" as a civil case progresses. Two of the leading supreme court cases underlying today's decision reflect that struggle: Boedy v. Department of Professional Regulation , 463 So.2d 215 (Fla. 1985) and State ex rel. Vining v. Florida Real Estate Commission , 281 So.2d 487 (Fla. 1973). Neither arose in the context of medical negligence, but both provide helpful parameters for future physician disciplinary cases.

Boedy involved a physician, but his Fifth Amendment claim was a right to refuse to submit to any mental and physical examinations. At issue was his fitness to practice generally, rather than his exercise of care as to patients. In this context, our supreme court held that "it is constitutionally permissible to deny authority to practice medicine to a physician who asserts the privilege against self-incrimination if his claim has prevented full assessment of his fitness and competency to practice." Boedy , 463 So.2d at 218. The court reasoned that although the "Fifth Amendment privilege against self-incrimination protects the accused from being compelled to testify against himself[,] [it] does not extend to the exclusion of evidence of his physical or mental condition when such evidence is otherwise admissible, even when the evidence is obtained by compulsion." Id. at 217. The reasons why the privilege didn't apply were two-fold: the physician's competence was at issue, not his guilt or innocence, and a statute explicitly protected the physician's interest against compelled testimony providing that "neither the testimony received from a physician, nor the orders subsequently entered on the basis of that testimony may be used against the physician in any other administrative, civil or criminal proceeding." Id. at 218.

Unlike Dr. Boedy, Dr. Omulepu was not required to give up his testimonial privilege in this disciplinary proceeding. Instead, he exercised that right, the question presented being the evidentiary value of his silence as to his provision of medical care. On this point, Boedy signaled that a tradeoff exists in physician discipline cases between the exercise of the privilege and the retention of the "benefits of the status of being a licensed physician." Id. In Boedy , the balance was struck to compel the mental and physical examinations of the physician but protect against their use in any legal proceedings thereafter. The balance here, in contrast, is not to compel testimony but to allow an adverse inference from the decision to remain silent, which raises potential constitutional implications such as those discussed in Vining , next discussed.

In Vining , the supreme court held that a statute, which compelled a realtor to file a sworn answer to allegations against him or lose his license by default, amounted to a coercive deprivation of the Fifth Amendment right to withhold testimony in an administrative proceeding. 281 So.2d at 491-92 ("The basic constitutional infirmity of the statute lies in requirement of a response under threat of license revocation or suspension, which amounts to compelling the defendant to be a witness against himself" under the state and federal constitutions.). In doing so, the court made clear that the Fifth Amendment "right to remain silent applies not only to the traditional criminal case, but also to proceedings 'penal' in nature in that they tend to degrade the individual's professional standing, professional reputation or livelihood." Id. at 491. Further, it surmised that "a legislative enactment allowing but not requiring a defendant to answer would not be constitutionally objectionable, but we are not confronted with such a provision here." Id. at 492.

An obvious takeaway from Vining is that license-deprivation is penal in nature, thereby confirming that other professionals, such as attorneys and physicians, retain their Fifth Amendment privilege in the face of administrative disciplinary proceedings. Less obvious is the court's holding that the statute at issue effectively shifted the burden of proof from the Real Estate Commission to the realtor, an unconstitutional result under the court's analysis. Id. By parallel reasoning, other forms of proof or procedure that shift the evidentiary burden-such as a presumption of negligence-could be subject to invalidation.

Applied here, the question is whether allowing an adverse inference from Dr. Omulepu's silence can be drawn without crossing the line into invalid burden-shifting. On this point, an adverse inference is unlike a presumption because it merely allows the fact-finder to infer a fact that is rationally related to facts established in the record; it does not require that an inference be adverse, nor does it shift the burden of proof. But the concept has the potential to be misconstrued as allowing an adverse inference to become an independent fact that by itself can meet the burden of proof to establish substandard patient care, which it cannot. For example, in Scott v. Department of Professional Regulation , 603 So.2d 519 (Fla. 1st DCA 1992), opinion clarified (Aug. 12, 1992), a license-suspension order was reversed because it was based entirely on an inadmissible hearsay report. The nurse failed to appear at the hearing or respond to the complaint against her, but doing so "did not relieve the [Department] of its obligation to substantiate the charges by presenting sufficient evidence." Id. at 520. Had Nurse Scott chosen to appear, but invoked her privilege and refused to testify, a similar result would have been likely: sufficient record evidence-apart from any adverse inference-would have been necessary to support license-suspension. See, e.g. , Golden Yachts, Inc. v. Hall , 920 So.2d 777, 780 (Fla. 4th DCA 2006) ("The adverse inference instruction does not relieve a party from its burden of proof at trial.").

As to Dr. Omulepu's silence, the administrative law judge not only drew from it an adverse inference that malpractice occurred, but also concluded that it was the "only inference" to be drawn in the case based on other evidence independently establishing that Dr. Omulepu had acted negligently; indeed, Dr. Omulepu had tacitly admitted to doing so by telling a patient's mom that he'd "messed up" the surgery. Sufficient record evidence-apart from the adverse inference from the physician's silence-supported the factual findings of substandard medical care, making the adverse inference supplemental (and probably unnecessary) to affirm in this case (or making it harmless error if the adverse inference had been impermissibly drawn).

The point is that an inference must be rooted in and flow directly from record evidence establishing professional misconduct; an inference alone cannot establish liability. See, e.g. , Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc. , 561 F.3d 1298, 1304 (11th Cir. 2009) ("[A] dismissal following the assertion of the Fifth Amendment violates the Constitution where the inferences drawn from Fifth-Amendment-protected silence are treated as a substitute for the need for evidence on an ultimate issue of fact."). As Judge Lucas said on this point:

The effect of the adverse inference is not without limits. For example, under federal law, a court may not enter summary judgment or dismiss a complaint based solely on a party's assertion of the Fifth Amendment and the adverse inference against the litigant's silence. This follows from the basic proposition that whatever inference or persuasiveness it may give rise to, silence, by itself, is not a substitute for evidence. Nor has any reported Florida decision upheld adjudication in favor of a plaintiff's claim absent some evidence in addition to the defendant's Fifth Amendment objection.

Balance of Silence , at 36 (footnotes omitted). Simply put, an administrative complaint of medical negligence against a physician who chooses to exercise a Fifth Amendment privilege cannot support discipline without adequate supporting evidence of the claimed misconduct; the physician's silence is insufficient to shift or meet the regulator's evidentiary burden.

A final note is that Fifth Amendment jurisprudence as it applies to criminal trials versus civil proceedings is starkly different. Silence is protected vigilantly in the former (to prevent government overreach in criminal cases) but loathed in the latter (because society expects people to defend themselves against false charges). This gulf signifies an ongoing need to discern where to draw the "line between unlawful compulsion against one party's right to remain silent and infringement of another party's right of access to the court" as Judge Lucas has written. Id. at 43. "Drawing it inescapably involves a question of judgment." Id.


text:
    Joseph Wayne SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-717
    District Court of Appeal of Florida, First District.
    June 22, 2018
    Andy Thomas, Public Defender, Justin Foster Karpf, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant challenges the trial court's summary denial of his pro se motion to withdraw plea, arguing that, because his motion alleged an adversarial relationship with his counsel, he was entitled to appointment of conflict-free counsel.

Facts

On January 13, 2016, Appellant was charged by information with Felony Petit Theft and pled nolo contendere. At his plea hearing on August 24, 2016, Appellant told the court that he understood that by pleading straight up, he did not know what his sentence would be. Appellant stated that he understood he was charged with six counts of felony theft, and he understood each of the charges. He understood that each case carried a maximum five-year sentence and a $5,000 fine. Appellant stated that he agreed with the facts in each of the charges and understood that, based on his scoresheet, he faced a minimum of 19 months in state prison. Appellant further stated that he understood that, by pleading no contest, he waived his right to a jury trial, the right to cross-examine witnesses, the right to present witnesses, and any legal defenses he may have had. Appellant stated that no one was forcing him to plead no contest and that he was not under the influence of alcohol, drugs, or medication. Appellant stated that he had had time to go over the charges with his attorney, and he was satisfied with his attorney's advice and the representations his attorney had made to him.

The court accepted Appellant's plea, finding that in each case, each count was knowingly and voluntarily entered, and there was a factual basis for each. The court adjudicated Appellant guilty and sentenced him to serve 36 months in state prison, with credit for 212 days of time served.

On December 21, 2016, Appellant filed a pro se motion to withdraw plea, in which he alleged that he "scored out to 19.3 months," and his attorney did not inform him that he would receive a three-year prison sentence. Appellant alleged that he pled out based on his attorney's advice, but he wasn't advised as to "what cost or risk that [he] would be facing."

The trial court entered an order denying Appellant's motion to withdraw plea, stating that, despite Appellant's allegations that he did not know he would be given a three-year prison sentence, Appellant's plea was entered freely, voluntarily, and intelligently given.

Analysis

The standard of review of a trial court's denial of a motion to withdraw plea is abuse of discretion. Woodly v. State , 937 So.2d 193, 196 (Fla. 4th DCA 2006). Where a defendant files a facially sufficient motion to withdraw his plea, he is entitled to an evidentiary hearing on the issue unless the record conclusively refutes his allegations. Id.

A motion to withdraw a plea pursuant to rule 3.170(l ) is a critical stage in the direct criminal proceeding at which the defendant is entitled to effective assistance of counsel. Flemming v. State , 204 So.3d 950, 952 (Fla. 1st DCA 2016).

"In Sheppard v. State, the Supreme Court 'outline[d] the procedure trial courts should follow when a represented defendant files a pro se rule 3.170(l ) motion based on allegations giving rise to an adversarial relationship such as counsel's misadvice, misrepresentation, or coercion that led to the entry of the plea ....' " Id. (quoting Sheppard , 17 So.3d 275, 286-87 (Fla. 2009) ). The court in Sheppard held:

[T]he trial court should hold a limited hearing at which the defendant, defense counsel, and the State are present. If it appears to the trial court that an adversarial relationship between counsel and the defendant has arisen and the defendant's allegations are not conclusively refuted by the record, the court should either permit counsel to withdraw or discharge counsel and appoint conflict-free counsel to represent the defendant.

17 So.3d at 287.

Pursuant to Sheppard , "the trial court is not required to appoint conflict-free counsel unless both an adversary relationship exists and the defendant's allegations are not conclusively refuted by the record." Flemming , 204 So.3d at 952 (emphasis in original) (quoting Nelfrard v. State, 34 So.3d 221, 223 (Fla. 4th DCA 2010). Thus, if a defendant's allegations are conclusively refuted by the record, the trial court's failure to hold the "limited hearing" required by Sheppard is harmless error, and the defendant is not entitled to substituted counsel. Id. (citing Johnson v. State, 22 So.3d 840, 844 (Fla. 1st DCA 2009) ).

In Flemming , the trial court discussed with the defendant the charges against him and the terms to which he would be sentenced; the defendant answered affirmatively when asked whether he understood the agreement and whether he believed it was in his best interest to accept the State's offer. 204 So.3d at 952. The defendant also signed a plea form setting forth the agreement as explained by his counsel and the trial court. Id. Based on those facts, this court determined that the record conclusively refuted the appellant's allegation that he was misadvised that he would receive a lesser sentence. Id. "[H]aving established that [the appellant's] allegations were conclusively refuted by the record, it follows that [the appellant] was not entitled to an evidentiary hearing," and the trial court did not err in summarily denying his motion to withdraw plea. Id. at 953.

Here, nothing in the record shows that Appellant's counsel withdrew before the court considered his motion, "so he was not 'completely denied representation and assistance with regard to his motion to withdraw plea.' " Id. at 952 (quoting Tipler , 149 So.3d 1192, 1193 (Fla. 1st DCA 2014) ). As in Flemming , the court here conducted an extensive colloquy, where Appellant stated that he understood that he did not know what his sentence would be, that the charges against him carried a maximum sentence of five years, and, based his scoresheet, he faced a minimum of 19 months in prison. Therefore, Appellant's allegations that he was misadvised that he might receive a three-year prison sentence are conclusively refuted by the record. Flemming , 204 So.3d at 952. Thus, Appellant was not entitled to an evidentiary hearing on his motion to withdraw plea and was not entitled to substitute counsel, and the trial court therefore did not abuse its discretion in summarily denying Appellant's motion.

AFFIRMED.

Wolf and Ray, JJ., concur.