Oquendo v. State

• Decision Date: 26 November 2008
• Docket Number: No. 4D08-651.,4D08-651.
• Citation: 2 So.3d 1001
• Parties: Joel OQUENDO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

2 So.3d 1001

Joel OQUENDO, Appellant, v. STATE of Florida, Appellee.

No. 4D08-651.

District Court of Appeal of Florida, Fourth District.

November 26, 2008.

Rehearing Denied January 12, 2009.

Arthur L. Wallace, III, of the Law Offices of Arthur Wallace, Pompano Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Joel Oquendo appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion. Because the records attached by the trial court to the order of denial do not refute some of Oquendo's claims, we reverse and remand for further proceedings. We also direct the trial court to give Oquendo at least one opportunity to amend insufficient claims.

Procedural Background

Oquendo pleaded guilty in October 1997 to trafficking in cocaine and conspiracy to traffic in cocaine. As part of the plea, he entered into a substantial assistance agreement with the state and agreed to work with a Broward County detective in making drug-related arrests. A tape recording of Oquendo agreeing to the terms of the substantial assistance agreement was created and may have been incorporated as part of the negotiated plea in this case.

A factual dispute exists as to whether Oquendo provided assistance or not, but he admits that after entering the plea, he fled to Sarasota, Florida and changed his name. He alleges that he feared for his life because he was threatened by unnamed individuals. Oquendo's sworn postconviction motion alleged that the detective who was supervising him instructed him to change his name and leave the jurisdiction until contacted by authorities. At a hearing in March 1998, the detective testified that Oquendo had violated the substantial assistance agreement by failing to maintain contact with the detective for several weeks. A warrant issued for Oquendo's arrest. He was not apprehended until December 2005 when he was arrested in Miami-Dade County on multiple unrelated charges under the name Edis Rodriguez.

Oquendo was eventually identified as the person who had absconded in this case. In March 2007, the trial court in this case found that Oquendo had violated the terms of his plea agreement and sentenced him to concurrent terms of fifteen years in prison on each count.

Oquendo's Motion

Oquendo filed the instant motion for postconviction relief listing more than twelve claims that attack the voluntariness of his plea and raise other matters. We briefly restate the claims as follows: (1) Oquendo was not provided an interpreter during the plea proceedings; (2) Counsel induced Oquendo to plead guilty; (3) The plea entered without a translator is unconstitutional; (4) Oquendo did not understand and was not informed of the elements of the offenses with which he was charged; (5) Oquendo was not informed of the consequences of a breach of the substantial assistance agreement; (6) The court failed to inform Oquendo that he had the right to not plead guilty and the court failed to ensure that Oquendo understood this right or to obtain a written waiver of the right to jury trial; (7) The court failed to ensure that the plea to each count was knowing and voluntary and supported by a legally sufficient factual basis; (8) The court failed to inform Oquendo of the mandatory minimum penalties for trafficking in cocaine or of the "additional penalties" of certain state and federal statutes that impose civil sanctions on those convicted of drug trafficking; (9) The convictions were predicated on a stipulated factual basis even though a substantial factual basis was lacking; (10) Counsel allegedly gave Oquendo misadvice and the state allegedly violated the plea agreement; (11) The trial court failed to award Oquendo all of his jail credit; and (12) Oquendo's conviction constitutes a manifest injustice because he is actually innocent and was "entrapped" by a confidential informant for the state.¹

Insufficiently-Pleaded Claims

Most of these claims are conclusorily alleged and do not merit relief. See Atwater v. State, 788 So.2d 223, 228 n. 5 (Fla. 2001) (explaining "`[a] defendant may not simply file a motion for postconviction relief containing conclusory allegations that his or her trial counsel was ineffective and then expect to receive an evidentiary hearing'") (quoting Kennedy v. State, 547 So.2d 912, 913 (Fla.1989)).

Longstanding Florida caselaw requires that a postconviction movant describe with sufficient detail the factual support for a claim or the claim may be summarily denied. "The defendant bears the burden of establishing a prima facie case based upon a legally valid claim. Mere conclusory allegations are not sufficient to meet this burden." Id. at 229; see also Morgan v. State, 991 So.2d 835, 841 (Fla.2008); Doorbal v. State, 983 So.2d 464, 482-84 (Fla.2008); McDonald v. State, 952 So.2d 484, 489-90 (Fla.2006); Jones v. State, 928 So.2d 1178, 1182 (Fla.2006); Parker v. State, 904 So.2d 370, 378 (Fla. 2005); Wright v. State, 857 So.2d 861, 873 (Fla.2003); Reaves v. State, 826 So.2d 932, 939-40 (Fla.2002); Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000); LeCroy v. Dugger, 727 So.2d 236, 239-41 (Fla.1998); Jackson v. Dugger, 633 So.2d 1051, 1054 (Fla.1993); Kennedy v. State, 547 So.2d 912, 913 (Fla.1989).

The conclusory claims in Oquendo's motion did not require an evidentiary hearing. In Spera v. State, 971 So.2d 754 (Fla.2007), however, the Florida Supreme Court determined that a trial court abuses its discretion when it fails to provide a postconviction movant at least one opportunity to amend a legally insufficient postconviction motion that fails to meet pleading requirements. Nevertheless, Spera did not expressly disturb the long line of precedent permitting summary denial of conclusory claims. Cf. Baldwin v. State, 978 So.2d 257 (Fla. 2d DCA 2008) (reversing denial of conclusory claim and remanding with directions to strike the insufficient claim). The Florida Supreme Court's decisions in Morgan and Doorbal, cited above, issued after Spera and did not give the postconviction movants an opportunity to amend the conclusory claims.

Record Attachments Do Not Refute Oquendo's Allegations: Spera Requires Remand

We are concerned with Oquendo's numerous allegations regarding what occurred, or did not occur, at the plea hearing. The state attached to its response below a copy of the taped substantial assistance agreement in order to show that Oquendo could speak English, that he refused the assistance of a translator, and that he was advised of the terms of the agreement and the potential penalties he faced. The state did not attach any records regarding what transpired when the plea was entered, such as a transcript of a plea hearing or a written plea form. Thus, we cannot determine whether the terms discussed in the taped substantial assistance agreement were incorporated into the plea that Oquendo entered before the court.

In addition, the tape offered to refute Oquendo's claims was not authenticated. The state has not indicated that the tape it provided had been admitted into evidence in any prior proceedings in this case. While we agree that the person on the tape appears to have understood what was occurring and declined the assistance of an interpreter, the tape alone does not refute Oquendo's claims regarding what occurred when he entered his plea.

We must reverse and remand for further proceedings in this case because the records attached to the order of denial do not refute some of Oquendo's claims that his plea was not knowingly and voluntarily entered. We do not believe that the tape provided by the state can conclusively refute all of the claims absent some evidence that the tape, or the agreement memorialized therein, was incorporated as part of the plea agreement. Further, absent a stipulation, the tape must be authenticated as a true representation of Oquendo's substantial assistance agreement. § 90.901, Fla. Stat. (2007). The state has not suggested that the tape it provided was part of the record or previously admitted into evidence. Again, the tape alone, without record evidence showing that the tape was incorporated as part of the plea agreement, does not refute all of the claims raised in the motion.

On remand, if records regarding the plea agreement cannot be obtained, then an evidentiary hearing may be required to establish what transpired at the plea hearing and to permit Oquendo an opportunity to prove any of his facially sufficient claims. The trial court should determine which claims are facially sufficient and not refuted by available records. The court should address only those claims at an evidentiary hearing.

In addition, the trial court must permit Oquendo a reasonable opportunity to amend any insufficiently-pleaded claims if Oquendo can do so in good faith. Spera, 971 So.2d at 762. While Oquendo's motion is prefaced by his sworn allegations about what happened before his arrest in 1997 and what led to his plea, the motion does not detail the factual support for all the claims catalogued in the motion. Some claims are stated in passing and are not supported by any facts alleged in the motion. On remand, Oquendo should consider withdrawing meritless claims.

We repeat the Florida Supreme Court's admonition that Spera did not intend to authorize "shell motions." Id. at 761. See also Gonzalez v. State, 990 So.2d 1017, 1034 (Fla.2008) (discussing the amendment to rule 3.851 which prohibits "shell motions" by expressly requiring "`a detailed allegation of the factual basis for any claim for which an evidentiary hearing is sought'") (quoting Fla. R.Crim. P. 3.851(e)(1)(D)). While rule 3.850(c)(6) requires merely "a brief statement of the facts (and other conditions) relied on in support of the motion," a claim that fails to specify facts necessary to support the claim is insufficient to warrant relief. Nevertheless, we believe that Spera requires at...