Tribbitt v. State
| Decision Date | 04 May 2022 |
| Docket Number | 2D21-2100 |
| Parties | Marcus Antonio TRIBBITT, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Marcus Antonio Tribbitt, pro se.
Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County; Melissa Gravitt, Judge.
Marcus Tribbitt appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion, which asserted one claim of ineffective assistance of counsel based on newly discovered evidence. Because Mr. Tribbitt's motion is facially sufficient and this record doesn't conclusively refute his claim, we reverse and remand for the postconviction court to either host an evidentiary hearing or attach to its order portions of the record conclusively refuting Mr. Tribbitt's claim.
In 2007, a jury convicted Mr. Tribbitt of attempted robbery with a deadly weapon, armed robbery with a firearm, and fleeing or attempting to elude. In 2010, Mr. Tribbitt timely filed a rule 3.850 motion, raising three claims of ineffective assistance of counsel; the postconviction court denied that motion in 2013, and this court affirmed. See Tribbitt v. State , 151 So. 3d 1252 (Fla. 2d DCA 2014) (table decision). On May 1, 2020, Mr. Tribbitt filed the rule 3.850 motion that is the subject of this appeal.
In his 2020 motion, Mr. Tribbitt contended that his trial counsel didn't tell him about a twenty-year plea offer the State allegedly made in 2007. Mr. Tribbitt admitted that he rejected another plea offer for twenty years’ imprisonment plus ten years’ probation before trial but asserted that he just learned about this stand-alone twenty-year offer. Mr. Tribbitt alleged that this information was unknown to him, and that he could not have ascertained the information sooner with the exercise of due diligence. He explained that "on February 5, 2020[, his] mother ... spoke to [his] trial counsel ... via telephone" and counsel "revealed the previously un-conveyed [sic] plea offer." He added that his mother learned of this plea offer "after multiple years of conducting [a]n independent investigation through the purchase of [c]ourt documents/files and making numerous telephone calls."
Mr. Tribbitt attached his mother's affidavit to his motion. She swore that she spoke to Mr. Tribbitt's trial counsel by telephone on February 5, 2020, and that she immediately related her conversation to Mr. Tribbitt. She attested that trial counsel said "that she would have to check her case file[ ] but that she only could remember receiving a twenty-year plea offer[ ] from the State Prosecutor prior to trial." She added that when she pressed trial counsel on whether this offer included probation, counsel "only remember[ed] the twenty-year plea offer."
Mr. Tribbitt argued that his circumstances were "virtually identical" to those in Petit-Homme v. State , 205 So. 3d 848 (Fla. 4th DCA 2016), where the defendant claimed his half-brother told him about a previously unconveyed plea offer seventeen years after his conviction. And the Fourth District held that those allegations were facially sufficient to support an ineffective assistance of counsel claim based on newly discovered evidence. Id . at 849.1
The postconviction court summarily denied Mr. Tribbitt's motion, concluding that (1) it was time-barred "in that [Mr. Tribbitt] could have discovered this claim during his 2010 postconviction practice" and (2) Mr. Tribbitts mother's affidavit did "not show that probation was not a part of the offer" because "[c]ounsel informed the mother that she needed to check her notes" and "[n]o follow up with counsel was conducted." The court did not attach any record evidence to its order and instead incorporated the State's response to Mr. Tribbitt's motion by reference.2
We "review the postconviction court's summary denial of a rule 3.850 motion de novo." Woodbury v. State , 302 So. 3d 492, 493 (Fla. 2d DCA 2020). To uphold the postconviction court's summary denial of a rule 3.850 motion, the claims must be facially insufficient, conclusively refuted by the record, or procedurally- or time-barred. Id. And "[w]hen the trial court denies postconviction relief without conducting an evidentiary hearing, ‘this [c]ourt must accept [the defendant's] factual allegations as true to the extent they are not refuted by the record.’ " Tompkins v. State , 872 So. 2d 230, 238 (Fla. 2003) () (quoting Rose v. State , 774 So. 2d 629, 632 (Fla. 2000) ).
The postconviction court's summary denial of Mr. Tribbitt's motion must be reversed.
Under Petit-Homme and other district court precedent that bound the postconviction court, Mr. Tribbitt's claim was facially sufficient and was not procedurally- or time-barred. A defendant can file a rule 3.850 motion after the two-year time limit if his claim is predicated on "newly discovered facts." See Fla. R. Crim. P. 3.850(b)(1) ; Blake v. State , 152 So. 3d 66, 68 (Fla. 2d DCA 2014) (). A motion based on newly discovered facts must be filed "within [two] years of the time the new facts were or could have been discovered with the exercise of due diligence." Fla. R. Crim. P. 3.850(b)(1).
In two decisions featuring facts quite similar to those at hand, the Fourth District held that the defendants alleged facially sufficient claims outside the two-year time limit by asserting they first learned of a previously unconveyed plea offer through a third party and then promptly filed rule 3.850 motions. See Clark v. State , 236 So. 3d 481, 482 (Fla. 4th DCA 2018) ; Petit-Homme , 205 So. 3d at 849. As did the postconviction court here, the postconviction courts in Petit-Homme and Clark concluded that the defendants could have discovered these plea offers sooner with due diligence. The Fourth District disagreed, reasoning in Petit-Homme that a third party's knowledge of a plea offer should not be imputed to the defendant for purposes of the two-year deadline prescribed in rule 3.850(b). See Petit-Homme , 205 So. 3d at 849. Two years later, the Fourth District specifically stated that "trial counsel's knowledge of the plea offer is not imputed to [the defendant] for purposes of the newly discovered fact exception of [r]ule 3.850(b)." Clark , 236 So. 3d at 482. See also Taylor v. State , 248 So. 3d 280, 281 (Fla. 5th DCA 2018) ().3
Our dissenting colleague contends that, as a matter of law, trial counsel's knowledge of a plea offer precludes its consideration as newly discovered under the plain language of rule 3.850. While we appreciate our colleague's approach to interpretation of the rule, the trial court was bound by the Fourth District's construction of it. Pardo v. State , 596 So. 2d 665, 666 (Fla. 1992) ().4
Mr. Tribbitt's motion pled all the elements required by Alcorn v. State , 121 So. 3d 419, 430 (Fla. 2013). See Clark , 236 So. 3d at 483 (). Accordingly, Mr. Tribbitt's motion was facially sufficient, and "[n]o procedural hurdles prevented the postconviction court from considering the merits of [Mr. Tribbitt's] newly discovered evidence claim." See Forbes v. State , 269 So. 3d 677, 679 (Fla. 2d DCA 2019).
Though we agree with the postconviction court that the mother's affidavit does not conclusively "show" that the State offered Mr. Tribbitt a twenty-year plea offer without probation, Mr. Tribbitt was not required to make such a showing at this stage of the proceeding.5 Instead, Mr. Tribbitt would be required to prove at an evidentiary hearing that the twenty-year plea offer existed. See Forbes , 269 So. 3d at 680 (); see generally Freeman v. State , 761 So. 2d 1055, 1061 (Fla. 2000) (); Green v. State , 857 So. 2d 304, 305 (Fla. 2d DCA 2003) (). And the postconviction court was required to accept Mr. Tribbitt's allegations—including his claim that the twenty-year no probation plea offer existed—as true unless they were conclusively refuted by the record. See Tompkins , 872 So. 2d at 238. Because no record evidence conclusively refutes Mr. Tribbitt's allegation that this plea offer existed,6 we too are bound to accept Mr. Tribbitt's allegations as true. See id.
Florida courts interpret the due diligence provision in rule 3.850(b)(1) to require the defendant to "not only allege but also demonstrate that his motion was filed within two years from the date that the evidence could have been discovered." See, e.g. , Burns v. State , 110 So. 3d 96, 97 (Fla. 2d DCA 2013). Mr. Tribbitt sufficiently alleged due diligence by claiming that he first learned of the plea offer from a third party three months before he filed his motion. See Petit-Homme , 205 So. 3d at 849 ; Clark , 236 So. 3d at 482 ; accord Forbes , 269 So. 3d at 679.
Mr. Tribbitt also "demonstrated" the operative due diligence facts by attaching his mother's affidavit—in which she confirmed Mr. Tribbitt's allegations and timeline—to his motion. Cf. Burns , 110 So. 3d at 97 (...
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