IN THE SUPREME COURT OF FLORIDA $

JOSE RIVERO Petitioner SC Case No

v LT Case No 3D07-2490

THE STATE OF FLORIDA Respondent

PETITIONERS JURISDICTIONAL BRIEF

ON REVIEW FROM THE DISTRICT COURT OF APPEAL

THIRD DISTRICT STATE OF FLORIDA

JOSE A RIVERO PRO-SE APPELLANT

1035 West 77th Street Apt-315

HIALEAH FLORIDA 33014

TABLEOFCONTENTS

TABLE OF CONTENTS i

TABLE OF CITATIONSii iii

STATEMENT OF THE CASE AND FACTS 1

SUMMARY OF THE ARGUMENT 4-5

ARGUMENT

I THE MAJORITY CONTENTION THAT THE DEFENDANT WAS NOT ENTITILED TO AN EVIDENTIARY HEARING BECAUSE THE PLEA TRANSCRIPT UNEQUIVOCALLY REFUTES THE DEFENDANTS CLAIM 5

II THE MAJORITY BASES AFFIRMANCE UPON THE GROUND THAT ALLOWING TELEPHONIC TESTIMONY OVER DEFENSE OBJECTION WAS HARMLESS 6

III THE DISTRICT COURT FAILED TO ADDRESS THE SECOND ISSUE RAISED BY THE APPELLANT CONCERNING MR UBIETAS CREDIBILITY 9

CONCLUSION 10

CERTIFICATE OF SERVICE 10

CERTIFICATE OF COMPLIANCE 10

APPENDIXCopy of 3d DCA Opinion dated September 25 2013

1

TABLE OF CITATIONS

STATUTES

Fl Statute 83702 8

CASES

Fl Statute 837021 8

Brown v State 101 So 3d 381 (Fla Dist Ct App 18 Dist 2012) 4 7

Cartwright v State 112 So 3d 582 (Fla Dist Ct App 4th Dist 2013) 6

Cole v Cole 86 So 3d 1175 (Fla Dist Ct App 5th Dist 2012) 4 7

Hayes v State No 2D13-1682 (Fla Dist Ct App 2nd Dist Sept 4 2013) 4 6

Jones v State 846 So 2d 1224 (Fla Dist Ct App 2d Dist 2003) 4 6

Kennedy v State 547 So 2d 912 (Fla 1989) 4 5

McKune v State 953 So 2d 746 (Fla 2007) 4 6

MS v Dept of Children amp Families 6 So 3rd 102 (Fla Dist Ct App 4th Dist 2009)4 7

Nelson v State 996 So 2d 950 (Fla Dist Ct App 24 Dist 2008) 4

Robert v State 568 So 2d 1255 (Fla1990) 4 5

Strickland v Washington 466 US 668 (1984) 6

11

OTHER AUTHORITIES

Fla R Jud Admin 207 (2006) 4 6

111

STATEMENT OF CASE AND THE FACTS

On March 8 2002 - Defendant was arrested and held with no bond Case

(F02-6845)On April 9 2002 the Defendant went to an Arthur hearing represented

by Atty Jose Lago where the court heard witness testimony from the Defendant

and the State The court sided with the Defense (Appellants Initial Brief-App

53) the Defendant was given bond Shortly thereafter the Appellant hired Atty

Rafael Ubieta the focal point of this appeal and the Rule 3850 filed in the Trial

Court On June 12 2002 Mr Ubieta filed a motion for the Court to Modify the

Conditions of the Pre-Trial Release where Mr Ubieta admits to contact between

both parties (Appellants Initial Brief-App6) The State then seized on this

opportunity and re-arrested the Defendant charging him with a misdemeanor

violation of a stay away order Shortly thereafter during the early part of August

2002 Mr Ubieta notified the Defendants family that the case file was lost He

then visits the Defendant to inform him of the same and proceeds to convince the

Defendant that pleading out to the States demands is his only viable option elven

the fact that his case file along with other exculpatory evidence had gone missing

during his firms office move to the 5th floor in the same office building On

August 16th Mr Ubieta having failed to procure his clients release due to his

negligent filing ofa motion his losing ofthe case file and by way ofnefarious and

- 1 shy

TABLEOFCONTENTS

TABLE OF CONTENTS i

TABLE OF CITATIONSii iii

STATEMENT OF THE CASE AND FACTS 1

SUMMARY OF THE ARGUMENT 4-5

ARGUMENT

I THE MAJORITY CONTENTION THAT THE DEFENDANT WAS NOT ENTITILED TO AN EVIDENTIARY HEARING BECAUSE THE PLEA TRANSCRIPT UNEQUIVOCALLY REFUTES THE DEFENDANTS CLAIM 5

II THE MAJORITY BASES AFFIRMANCE UPON THE GROUND THAT ALLOWING TELEPHONIC TESTIMONY OVER DEFENSE OBJECTION WAS HARMLESS 6

III THE DISTRICT COURT FAILED TO ADDRESS THE SECOND ISSUE RAISED BY THE APPELLANT CONCERNING MR UBIETAS CREDIBILITY 9

CONCLUSION 10

CERTIFICATE OF SERVICE 10

CERTIFICATE OF COMPLIANCE 10

APPENDIXCopy of 3d DCA Opinion dated September 25 2013

1

TABLE OF CITATIONS

STATUTES

Fl Statute 83702 8

CASES

Fl Statute 837021 8

Brown v State 101 So 3d 381 (Fla Dist Ct App 18 Dist 2012) 4 7

Cartwright v State 112 So 3d 582 (Fla Dist Ct App 4th Dist 2013) 6

Cole v Cole 86 So 3d 1175 (Fla Dist Ct App 5th Dist 2012) 4 7

Hayes v State No 2D13-1682 (Fla Dist Ct App 2nd Dist Sept 4 2013) 4 6

Jones v State 846 So 2d 1224 (Fla Dist Ct App 2d Dist 2003) 4 6

Kennedy v State 547 So 2d 912 (Fla 1989) 4 5

McKune v State 953 So 2d 746 (Fla 2007) 4 6

MS v Dept of Children amp Families 6 So 3rd 102 (Fla Dist Ct App 4th Dist 2009)4 7

Nelson v State 996 So 2d 950 (Fla Dist Ct App 24 Dist 2008) 4

Robert v State 568 So 2d 1255 (Fla1990) 4 5

Strickland v Washington 466 US 668 (1984) 6

11

OTHER AUTHORITIES

Fla R Jud Admin 207 (2006) 4 6

111

STATEMENT OF CASE AND THE FACTS

On March 8 2002 - Defendant was arrested and held with no bond Case

(F02-6845)On April 9 2002 the Defendant went to an Arthur hearing represented

by Atty Jose Lago where the court heard witness testimony from the Defendant

and the State The court sided with the Defense (Appellants Initial Brief-App

53) the Defendant was given bond Shortly thereafter the Appellant hired Atty

Rafael Ubieta the focal point of this appeal and the Rule 3850 filed in the Trial

Court On June 12 2002 Mr Ubieta filed a motion for the Court to Modify the

Conditions of the Pre-Trial Release where Mr Ubieta admits to contact between

both parties (Appellants Initial Brief-App6) The State then seized on this

opportunity and re-arrested the Defendant charging him with a misdemeanor

violation of a stay away order Shortly thereafter during the early part of August

2002 Mr Ubieta notified the Defendants family that the case file was lost He

then visits the Defendant to inform him of the same and proceeds to convince the

Defendant that pleading out to the States demands is his only viable option elven

the fact that his case file along with other exculpatory evidence had gone missing

during his firms office move to the 5th floor in the same office building On

August 16th Mr Ubieta having failed to procure his clients release due to his

negligent filing ofa motion his losing ofthe case file and by way ofnefarious and

- 1 shy

TABLE OF CITATIONS

STATUTES

Fl Statute 83702 8

CASES

Fl Statute 837021 8

Brown v State 101 So 3d 381 (Fla Dist Ct App 18 Dist 2012) 4 7

Cartwright v State 112 So 3d 582 (Fla Dist Ct App 4th Dist 2013) 6

Cole v Cole 86 So 3d 1175 (Fla Dist Ct App 5th Dist 2012) 4 7

Hayes v State No 2D13-1682 (Fla Dist Ct App 2nd Dist Sept 4 2013) 4 6

Jones v State 846 So 2d 1224 (Fla Dist Ct App 2d Dist 2003) 4 6

Kennedy v State 547 So 2d 912 (Fla 1989) 4 5

McKune v State 953 So 2d 746 (Fla 2007) 4 6

MS v Dept of Children amp Families 6 So 3rd 102 (Fla Dist Ct App 4th Dist 2009)4 7

Nelson v State 996 So 2d 950 (Fla Dist Ct App 24 Dist 2008) 4

Robert v State 568 So 2d 1255 (Fla1990) 4 5

Strickland v Washington 466 US 668 (1984) 6

11

OTHER AUTHORITIES

Fla R Jud Admin 207 (2006) 4 6

111

STATEMENT OF CASE AND THE FACTS

On March 8 2002 - Defendant was arrested and held with no bond Case

(F02-6845)On April 9 2002 the Defendant went to an Arthur hearing represented

by Atty Jose Lago where the court heard witness testimony from the Defendant

and the State The court sided with the Defense (Appellants Initial Brief-App

53) the Defendant was given bond Shortly thereafter the Appellant hired Atty

Rafael Ubieta the focal point of this appeal and the Rule 3850 filed in the Trial

Court On June 12 2002 Mr Ubieta filed a motion for the Court to Modify the

Conditions of the Pre-Trial Release where Mr Ubieta admits to contact between

both parties (Appellants Initial Brief-App6) The State then seized on this

opportunity and re-arrested the Defendant charging him with a misdemeanor

violation of a stay away order Shortly thereafter during the early part of August

2002 Mr Ubieta notified the Defendants family that the case file was lost He

then visits the Defendant to inform him of the same and proceeds to convince the

Defendant that pleading out to the States demands is his only viable option elven

the fact that his case file along with other exculpatory evidence had gone missing

during his firms office move to the 5th floor in the same office building On

August 16th Mr Ubieta having failed to procure his clients release due to his

negligent filing ofa motion his losing ofthe case file and by way ofnefarious and

- 1 shy

OTHER AUTHORITIES

Fla R Jud Admin 207 (2006) 4 6

111

STATEMENT OF CASE AND THE FACTS

On March 8 2002 - Defendant was arrested and held with no bond Case

(F02-6845)On April 9 2002 the Defendant went to an Arthur hearing represented

by Atty Jose Lago where the court heard witness testimony from the Defendant

and the State The court sided with the Defense (Appellants Initial Brief-App

53) the Defendant was given bond Shortly thereafter the Appellant hired Atty

Rafael Ubieta the focal point of this appeal and the Rule 3850 filed in the Trial

Court On June 12 2002 Mr Ubieta filed a motion for the Court to Modify the

Conditions of the Pre-Trial Release where Mr Ubieta admits to contact between

both parties (Appellants Initial Brief-App6) The State then seized on this

opportunity and re-arrested the Defendant charging him with a misdemeanor

violation of a stay away order Shortly thereafter during the early part of August

2002 Mr Ubieta notified the Defendants family that the case file was lost He

then visits the Defendant to inform him of the same and proceeds to convince the

Defendant that pleading out to the States demands is his only viable option elven

the fact that his case file along with other exculpatory evidence had gone missing

during his firms office move to the 5th floor in the same office building On

August 16th Mr Ubieta having failed to procure his clients release due to his

negligent filing ofa motion his losing ofthe case file and by way ofnefarious and

- 1 shy

STATEMENT OF CASE AND THE FACTS

On March 8 2002 - Defendant was arrested and held with no bond Case

(F02-6845)On April 9 2002 the Defendant went to an Arthur hearing represented

by Atty Jose Lago where the court heard witness testimony from the Defendant

and the State The court sided with the Defense (Appellants Initial Brief-App

53) the Defendant was given bond Shortly thereafter the Appellant hired Atty

Rafael Ubieta the focal point of this appeal and the Rule 3850 filed in the Trial

Court On June 12 2002 Mr Ubieta filed a motion for the Court to Modify the

Conditions of the Pre-Trial Release where Mr Ubieta admits to contact between

both parties (Appellants Initial Brief-App6) The State then seized on this

opportunity and re-arrested the Defendant charging him with a misdemeanor

violation of a stay away order Shortly thereafter during the early part of August

2002 Mr Ubieta notified the Defendants family that the case file was lost He

then visits the Defendant to inform him of the same and proceeds to convince the

Defendant that pleading out to the States demands is his only viable option elven

the fact that his case file along with other exculpatory evidence had gone missing

during his firms office move to the 5th floor in the same office building On

August 16th Mr Ubieta having failed to procure his clients release due to his

negligent filing ofa motion his losing ofthe case file and by way ofnefarious and

- 1 shy

legally unethical advice had the Defendant enter into a plea of guilty to all

charges

Not long after the Defendant was released and serving his sentence of

probation Ms Salgado the complaining witness in (F02-6843) once again falsely

accused the Defendant and had him arrested on a new case (F03-7276) This time

the Defendant proceeded to acquire competent counsel and hired Atty Phillip L

Reizenstein

It was during the preparations for the new case (F03-7276) that Mr

Reizenstein became aware of Mr Ubietas nefarious and unethical handling

of the previous case (F02-6845) and made the Defendant aware of the relief

available to him via the filing of the rule 3850 motion with the trial court

On March of 2004 the Defendant proceeded to trial on the new case (F03shy

7276) During the trial the Defendant exercised his right to testify by taking the

witness stand at which point the State invoked its right to introduce evidence from

the instant case (F02-6845) via the Williams Rule(R Vol1-Pg1-46) and

proceeded to present the pertinent aspects of the case before the jury The

Defendant was acquitted on all charges (by the all-female jury) on the Domestic

Violence case (F03-7276) On March 29 2004 Mr Philip L Reizenstein filed the

motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure

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3850 there in raising two grounds for relief 1) INEFFECTIVE ASSISTANCE

OF COUNSEL - Prior Counsel having lost the case file 2) NEWLY

DISCOVERED EVIDENCE - Ms Salgados recantation of her prior sworn

statements (R 18-33) The Trial court after hearing argument from both sides

decided to proceed with the Rule 3850 hearing The Ineffective Assistance of

Counsel hearing was held on July 24 2006 and only involved one witness Mr

Ubieta whom the court allowed to testify telephonically over the Defenses

objections(R 507-509) After the hearing was concluded the Defendant sent the

Trial court a letter with IRREFUTABLE EVIDENCE attached that proved Mr

Ubieta had committed perjury during his objectionable telephonic testimony now

on the record(R 277-299 amp Appellants Initial Brief-App8) Its this portion of the

3850 hearing along with the issues raised therein that the Appellant brought for

review before the Third District Court of Appeals after the Trial court issued a

written order denying the Defense motion on the Rule 3850 on August 28 2007

On September 28 2007 the Appellant filed his notice of Appeal with the lith

Circuit court Both sides then submitted their Appellate briefs to the 3rd DCA The

second issue dealing with Newly Discovered Evidence was never raised in

Appellants briefs to the 3DCA and the State acknowledged this fact on Pg 13

of their Response Brief The Appellate court then heard Oral Arguments on July 1

2013 The 3d DCA then issued its ruling on Sept 25 2013 affirming the lower

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courts decision with the Senior Judge Alan R Schwartz Dissenting

SUMMARY OF ARGUMENTS - I

The majority contention that the Defendant was not entitled to an evidentiary

hearing because the plea transcript unequivocally refutes the Defendants claim is

in express and direct conflict with the decision of the Florida Supreme Court in

Roberts v State 568 So 2d 1255 Fla 1990) Kennedy v State 547 So 2d 912

(Fla 1989) and the District courts in Hayes v State No 2D13-1682 (Fla 2d

DCA Sept 4 2013) Jones v State 846 So 2d 1224 (Fla 2d DCA 2003) Nelson

v State 996 So 2d 950 (Fla 2d DCA 2008) McKune v State 953 So 2d 746

(Fla 2d DCA 2007) And is not supported by the evidence in the record

SUMMARY OF ARGUMENTS - II

The majority bases affirmance upon the ground that allowing Telephonic

Testimony over Defense Objection was harmless is in express and direct conflict

with District Court Cases Brown v State 101 So 3d 381 (Fla Dist Ct App 1

Dist 2012) MS v Dept of Children amp Families 6 So 3rd 102 (Fla Dist Ct

App 4th Dist 2009) Cole v Cole 86 So 3d 1175 (Fla Dist Ct App 5 Dist

2012) and Florida Rules of Judicial Administration 2540(d)(1) The transcript

evidence from Mr Ubietas perjures testimony refutes the Majoritys opinion

- 4 shy

SUMMARY OF ARGUMENTS - III

The District Court mistakenly failed to address the second point on Appellants

Briefs thereby neglecting to address the important credibility issue being raised in

reference to Mr Ubieta the focal point of the Rule 3850 filed in the lower court

ARGUMENT

I

The Majority in the District Court contends that a Defendant having

accepted a plea during the course of a criminal case is synonymous to taking a

cyanide pill thereby negating any opportunity to correct errors that may have taken

place in the lower court This decision by the majority is both disturbing and

contrary to Roberts v State 568 So 2d 1255 (Fla 1990) where this Honorable

Court held that

To be entitled to an evidentiary hearing in connection with a claim of ineffective counsel the defendant must allege specific facts which are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant Also see Kennedy v State 547 So 2d 912 (Fla1990)

In the instant case the Appellant was able to point out to the court that his

former counsel Mr Rafael Ubieta had lost his case file and when Mr Ubieta

testified in his defense before the trial court on July 24 2006 he admitted that he

could not find the case file in his private storage thus supporting Defendants

allegation

-5shy

As the 3rd District Court of Appeals Senior Judge Alan Schwartz (The

Dissenting Judge) points out that while allegations of coercion may be negated by

generalized questions such as the Appellant answered during the plea process see

Cartwright v State 112 So 3d 582(Fla 4th DCA 2013) This is clearly not the

issue in the instant case where the Appellants claim of Attorney ineffectiveness is

supported by the irrefutable evidence on the record See Hayes v State No 2D13shy

1682 (Fla 2d DCA Sept42013) holding that general acknowledgements of

satisfaction with counsel do not conclusively refute claims of ineffective assistance

of counsel based on a failure to pursue specific defense Jones v State 846 So 2d

950 (Fla2d DCA 2008) McKune v State 953 So 2d 746 (Fla 2d DCA 2007)

KEY POINT The contention that Appellant failed to meet the burden to establish

the second prong of Strickland v Washington 466 US 668 (1984) is clearly

refuted by the record which shows the case has already prevailed in court on two

separate occasions Bench trial via the Arthur Hearing (Appellants Initial Brief -

App 53) and a Jury Trial on F03-7276 via Williams Rule (R VolI Pg 1-46)

II

The majority has ruled that allowing Mr Ubieta to testify telephonically

over Defense objection was harmless indicates the court has misinterpreted and

misapplied the facts that are on the record Fla R Jud Admin 207 (2006)

clearly states that telephonic testimony can only be allowed if all parties consent

-6shy

That was not the case here as Defense counsel vehemently objected on the record

encompassing 2 frac12 pages worth of transcript (R-507-509) Subsection (3) of the

Rule also requires a notary public or other person authorized to administer oaths to

be present with the witness in order to administer said oath In the instant case

this requirement was not met The Appellant said in a Notice of Supplemental

Authority to the 3d DCA on June 24 2013 Citing Brown v State 101 So 3d 381

(Fla Dist Ct App 1 Dist 2012) which is clearly the controlling case on this

point seeing that the 2 key issues are synonymous between both cases where the

Appellant court held

There was no notary or other person authorized to administer an oath present with Dr Jensen See Fla R Jud Admin 2530(d)(3) (Testimony may be taken through communication equipment only if a notary public or other person authorized to administer oaths in the witnesss jurisdiction is present with the witness and administers the oath consistent with the laws of the jurisdiction We cannot say that the error was harmless Aside from Dr Jensens testimony there was no other evidence to support the trial courts finding that the State proves by clear and convincing evidence that

In the instant case as with Brown v State Mr Ubieta was the only witness

to testify as to the issues pertaining to the missing case file The State failed to

offer any other witness or tangible evidence to substantiate Mr Ubietas claims

Also see Cole v Cole 86 So 3d 1175 (Fla 5th DCA 2012) MS v Dept of

Children and Families 6 So 3d 102 (Fla 4th DCA 2009) holding that the trial

courts erred in allowing telephonic testimony over the objection of a party was

-7shy

harmful error absent any other evidence to support the trial courts finding But

the most important reason the Trial Court erred in allowing the telephonic

testimony deals with section (d)(4) of the rule Confrontational Rights

During the course of Mr Ubietas testimony concerning the lost file he

committed perjury on several occasions emphatically stating that he never had

possession of a video tape which the defense planned to use as exculpatory

evidence during trial and because he was testifying over the telephone - The

Defense was unable to use Ubietas prior transcript testimony for impeachment

purposes where he had the same tape in his hand asking the judge at that particular

hearing to please allow him to play it for the court

KEY NOTE THERE IN LAYS THE PROBLEM WITH ALLOWING

TELEPHONIC TESTIMONY - IT IS IMPOSSIBLE TO HAND OVER

TANGIBLE IMPEACHMENT EVIDENCE TO A WITNESS THAT IS NOT

PRESENT IN THE COURT ROOM THIS WAS EXTREMELY HARMFUL

TO THE DEFENSE

Shortly after this hearing the Defendant wrote a letter to the Trial Court

along with transcript evidence of Mr Ubietas perjures testimony during that

hearing (R 277-299) amp Appellants Initial Brief-App8) in violation of Fl Statute

83702 Fl Statute 837021 asking the court to take the impeachment evidence

into consideration before rendering a ruling to no avail In the Trial Courts order

- 8 shy

Judge Perezs statement finding Mr Ubietas testimony to be credible was not

supported by the evidence that was at this point on the record

III

The District Court seems to have been confused with point II on Appellants brief

II THE LOWER COURTS RULING FINDING MR UBIETA CREDIBLE IS NOT SUPPORTED BY THE EVIDENCE

As it failed to address the issue being raised by the Appellant and erroneously

substituted point II of the lower Trial Case Rule 3850 motion in its place

II NEW LY DISCOVERED EVIDENCE SALGADOS TESTIMONY ABOUT AN INCIDENT IN DECEMBER 2002 IN WHICH SHE STATES THAT PRIOR TO THAT TIME (AND SUBSEQUENT TO THE PLEA IN THIS CASE) RIVERO HAD NEVER LAID A FINGER ON HER

As previously mentioned the second issue dealing with Newly Discovered

Evidence was never raised in Appellants briefs to the 3d DCA and the State

acknowledged this fact on Pg 13 of their Response Brief Given the credibility

issues raised by the Appellant on point II of this brief pertaining to Mr Ubietas

credibility makes this oversight by the District Court of Appeals a significant and

crucial mistake which clearly impaired the ability for a just and well informed

decision This may be an issue offigraverst impression as the Appellant has been unable

to find any case law alluding to a District court mistakenly substituting a

particularpoint on an appellate briefwith onefrom a Lower Court motion

CONCLUSION

WHEREFORE Petitioner asks that this Honorable Court would exercise

its jurisdiction and grant discretionary review in order to consider the merits of

Petitioners argument

Respectfull submitted

035 West 77th St et Apt - 315 Hialea Florida 33014

Cel Phon (786) 285-0590

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this briefwas mailed to NIKOLE HICIANO Assistant Attorney General Office ofAttorney General 444 Brickell Suite 650 Miami Florida 33131 this 10th day of October 2013

JOSE RIVERO

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief is submitted in Times New Roman 14shy

point font

JOSE RIVERO

- 10 shy

APPENDIX

Efjiacuterb 3)(stritt Court of 2(ppeal State of Florida July Term AD 2013

Opinion filed September 25 2013 Not final until disposition of timely filed motion for rehearing

No 3D07-2490 Lower Tribunal No 02-6845

Jose A Rivero Appellant

vs

The State of Florida Appellee

An Appeal from the Circuit Court for Miami-Dade County Jorge Perez Judge

Jose A Rivero in proper person

Pamela Jo Bondi Attorney General and Nikole Hiciano Assistant Attorney General for appellee

Before WELLS and ROTHENBERG JJ and SCHWARTZ Senior Judge

ROTHENBERG J

The defendant Jose Rivero appeals from the denial of his rule 3850 motion

for postconviction relief in which he claims that (1) he was pressured into

accepting the States plea offer because his lawyer had lost his case file and (2)

he had obtained newly discovered evidence that would have resulted in an acquittal

had he proceeded to trial Because the plea transcript unequivocally refutes the

defendants first claim and the evidence the defendant relies on is not newly

discovered evidence or evidence that would likely produce an acquittal the

defendants motion should have been summarily denied We therefore affirm the

trial courts order denying the defendant relief

The defendant seeks a reversal of the trial courts order denying his motion

for postconviction relief on the basis of a procedural error committed by the trial

court when it conducted an unnecessary evidentiary hearing which produced

further proof refuting the defendants claims Although it was error to allow the

defendants trial counsel to testify by telephone over the defendants objection at

the evidentiary hearing see Fla R Jud Admin 2530(d)(1) (permitting testimony

by telephone only if all parties consent) because no further proof was necessary

and the defendants allegations were unequivocally refuted without reliance on the

telephonically obtained testimony the error in this case was clearly harmless

Specifically the defendant was charged with burglary with an assault andor

a battery two counts of battery and criminal mischief and he was facing a

2

potential life sentence if convicted of burglary with an assault or battery The State

alleged that in violation of a domestic violence injunction stay-away order the

defendant drove to the victims home saw her kissing another man and when the

victim would not open the door the defendant kicked the door in fought with the

man he saw kissing the victim and slapped the victim The defendant does not

dispute that he kicked the door in and fought with the male occupant He only

disputes that he slapped the victim The plea offered by the State and accepted by

the defendant was a plea of guilty to the charges a withhold of adjudication six

months of community control followed by thirty months of probation with several

special conditions including a stay-away order from the victims and completion

of a domestic violence program

The relevant portions of the plea colloquy are as follows

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

3

Court Do you believe this plea is in your best interest

Defendant Yes

Court The Court finds a factual basis I find that you are alert and intelligent that you understand the nature and consequences of your plea and that you are represented by good and competent counsel which whom you say you are satisfied I find that you are entering into this plea freely and voluntarily I accept your plea of guilty

(emphasis added)

Thus the defendants claim that he was coerced or pressured to accept the

States very lenient plea offer which resulted in his immediate release from jail1

was unequivocally refuted by the record and the defendants first claim should

have been summarily denied _S_ee Cartwright v State 112 So 3d 582 584 (Fla

4th DCA 2013) In Cartwright the Fourth District recognized that

Under Florida law a defendants claim that his plea was the result of coercion by defense counsel may be conclusively refuted by the defendants responses during plea colloquy and the signed plea form Williams v State 919 So 2d 645 646 (Fla 4th DCA 2006) The record reflects that the court engaged in a thorough plea colloquy with Appellant in which Appellant represented that he understood the parameters of the plea that no one had threatened or coerced him into entering a plea that no one had promised him anything and that no

The defendant had been denied bail after a bond hearing was conducted by the trial court based on the defendants violation of a prior court order prohibiting the defendant from having any contact with the victim

4

1

one had misadvised him or made any misrepresentations to him Thus the record refutes Appellants claim that his plea was coerced

See also Alfred v State 71 So 3d 138 139 (Fla 4th DCA 2011) (A defendant is

bound by his sworn answers during a plea colloquy and cannot later disavow those

answers by asserting that he lied during the colloquy at counsels direction)

Davis v State 938 So 2d 555 557 (Fla 1st DCA 2006) (In the instant case the

appellant clearly states on record that he was satisfied with his attorneys services

Thus he cannot now assert that at the time of the pleas entry he had serious

doubts about his attorneys effectiveness) Rackley v State 571 So 2d 533 535

(Fla 1st DCA 1990) (affirming summary denial of the defendants rule 3850

claim of coercion and noting that on numerous occasions the court had rejected

similar claims in other cases alleging ineffective assistance of counsel or coercion

where oral or written statements made by the defendant at sentencing were to the

contrary and that Rackleys written plea contained statements that he had not been

coerced into entering his guilty plea and that he was satisfied with the services of

his attorney thus refuting his claim of coercion) Loconte v State 382 So 2d 26

26 (Fla 1st DCA 1979) (affirming summary denial of Locontes motion to set

aside his plea which he claimed was the result of coercion and promises where

there was a direct denial of coercion and promises by Loconte during his plea

colloquy)

5

Because the defendant in the instant case clearly stated under oath during his

plea colloquy that he was satisfied with the services of his attorney he was not

being pressured or coerced to accept the States offered plea and he was pleading

guilty because he was guilty and for no other reason he cannot now claim that his

plea was the product of coercion Thus the defendants claim of coercion should

have been summarily denied

Although the trial court erred in allowing the defendants trial counsel to

testify telephonically at the unnecessary evidentiary hearing over the defendants

objection this error was harmless beyond a reasonable doubt where trial counsels

testimony only provided additional evidence to refute the defendants claims See

Golden amp Cowan PA v Estate of Kosofsky 45 So 3d 986 987-88 (Fla 3d DCA

2010) (holding that the trial courts error in allowing telephonic testimony over the

appellants objection and in violation of rule 2530(d)(1) was harmless due to the

existence of other independent evidence which would have supported the trial

courts decision) SA v Dept of Children amp Family Servs 961 So 2d 1066

1067 (Fla 3d DCA 2007) (telephonic testimony permitted over mothers objection

in dependency hearing held to be harmless error because even if the telephonic

testimony was excluded there was other evidence supporting the trial courts

ruling) Quinones v Quinones 870 So 2d 108 109 (Fla 2d DCA 2003) (finding

6

no reversible error where the wife in a dissolution of marriage proceeding was

permitted over objection to testify telephonically)

We additionally reject the defendants second claim of newly discovered

evidence The newly discovered evidence which the defendant claims entitles

him to set aside his plea is the female victims later recantation of her prior sworn

testimony that the defendant slapped her after he kicked in the door of her house

This evidence was not only impeachable by the female victims prior sworn

testimony and statements to the police it would not have played any meaningful

role if the defendant had proceeded to trial The defendant admitted to kicking in

the door entering the house by force and getting into a physical fight with the

male victim These acts constitute a burglary with an assault andor a battery

Thus the defendant has failed to meet his burden to establish the prejudice prong

under Strickland v Washington 466 US 668 (1984)

Accordingly we affirm the trial courts order denying the defendants

motion for postconviction relief

Affirmed

WELLS J concurs

7

Case no 3D07-2490

Jose A Rivero v The State of Florida

SCHWARTZ Senior Judge (dissenting in part)

I disagree with the courts affirmance of the rejection of appellants Florida

Rule of Criminal Procedure 3850 claim of ineffective assistance of counsel which

was based upon the contention that he had no choice but to plead guilty because his

trial lawyer had lost his file including an allegedly exculpatory tape and the

lawyer was therefore unable to effectively defend him Trial counsel who was the

states only witness on this issue was permitted to present testimony directly

contrary to the defendants-that the file was not lost-by telephone without the

defendants consent and indeed over his specific objections There is no doubt that

this is contrary to Florida Rule of Judicial Administration 2540(d)(1) See Brown

v State 101 So 3d 381 (Fla 1st DCA 2012) Cole v Cole 86 So 3d 1175 (Fla

5th DCA 2012) MS v Dept of Children amp Families 6 So 3d 102 (Fla 4th DCA

2009)

The majority bases affirmance upon the ground of harmless error I believe

that this basis for affirmance which was not raised by the state or the trial court at

any stage of the proceedings below or on appeal is incorrect2 The majority

primarily contends that the specific claim of ineffectiveness presented by the

2 We have been unable to discover a prior instance of reversal on the bases assigned by the majority after a hearing on the merits has already been conducted

8

defendant was conclusively negated-obviating the necessity of an evidentiary

hearing at all-by the colloquy at which the plea was tendered and accepted by the

defendant in which the following occurred

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

While it is true that generalized allegations of coercion and the like may

be negated by answers like these during the plea-taking process see Cartwright v

State 112 So 3d 582 (Fla 4th DCA 2013) this is emphatically not the case when

as here claims of specific instances of attorney incapacity or ineffectiveness are

alleged and demonstrated below See Hayes v State No 2D13-1682 (Fla 2d DCA

Sept 4 2013) (holding that general acknowledgements of satisfaction with counsel

do not conclusively refute claims of ineffective assistance of counsel based on a

failure to pursue specific defense) Jones v State 846 So 2d 1224 (Fla 2d DCA

2003) (same) see also Nelson v State 996 So 2d 950 (Fla 2d DCA 2008)

9

McKune v State 953 So 2d 746 (Fla 2d DCA 2007) In my judgment these

decisions rather than the ones cited by the court are controlling on this issue

The court also finds a basis for harmlessness on the claim that the challenged

testimony was merely cumulative Again this is not the case There was no

testimony whatsoever concerning the allegedly lost file and the attendant

circumstances except for the lawyers erroneously admitted telephonic testimony

which was in turn the only basis for the trial judges rejection of the defendants

position As it said

This Court finds that the July 24 2006 hearing testimony of trial counsel Raphael Ubieta completely refutes this claim of the defendant The defendant alleges that defense counsel lost his case file however the testimonial evidence clearly refutes this claim Throughout the hearing Mr Ubieta was asked more than once if he had misplaced the defendants case file each time Mr Ubieta unequivocally responded he had the file it was not lost and he was ready to go to trial if need be When Mr Ubieta was asked whether he was prepared to try the case Mr Ubieta responded in the affirmative This Court finds the hearing testimony of Mr Ubieta credible and compelling

Since the lawyers testimony on the critical issue in the case was directly

contrary to that of the defendant and was accepted by the trial court and-perhaps

most important-because I believe that we cannot fmd that the violation of the

rules was harmless see Brown 101 So 3d at 382 (holding that the trial courts

error in allowing telephonic testimony in violation Florida Rule of Judicial

Administration 2530 was not harmless absent any other evidence to support the

10

trial courts finding) I would therefore remand the cause for the conduct of a new

evidentiary hearing on the ineffective assistance issue See Brown 101 So 3d at

381 Col_e 86 So 3d at 1175 MS 6 So 3d at 102 I agree with the courts

disposition of the newly discovered evidence point

11

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

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November 1 2013 101628 PM

3850 there in raising two grounds for relief 1) INEFFECTIVE ASSISTANCE

OF COUNSEL - Prior Counsel having lost the case file 2) NEWLY

DISCOVERED EVIDENCE - Ms Salgados recantation of her prior sworn

statements (R 18-33) The Trial court after hearing argument from both sides

decided to proceed with the Rule 3850 hearing The Ineffective Assistance of

Counsel hearing was held on July 24 2006 and only involved one witness Mr

Ubieta whom the court allowed to testify telephonically over the Defenses

objections(R 507-509) After the hearing was concluded the Defendant sent the

Trial court a letter with IRREFUTABLE EVIDENCE attached that proved Mr

Ubieta had committed perjury during his objectionable telephonic testimony now

on the record(R 277-299 amp Appellants Initial Brief-App8) Its this portion of the

3850 hearing along with the issues raised therein that the Appellant brought for

review before the Third District Court of Appeals after the Trial court issued a

written order denying the Defense motion on the Rule 3850 on August 28 2007

On September 28 2007 the Appellant filed his notice of Appeal with the lith

Circuit court Both sides then submitted their Appellate briefs to the 3rd DCA The

second issue dealing with Newly Discovered Evidence was never raised in

Appellants briefs to the 3DCA and the State acknowledged this fact on Pg 13

of their Response Brief The Appellate court then heard Oral Arguments on July 1

2013 The 3d DCA then issued its ruling on Sept 25 2013 affirming the lower

-3 shy

courts decision with the Senior Judge Alan R Schwartz Dissenting

SUMMARY OF ARGUMENTS - I

The majority contention that the Defendant was not entitled to an evidentiary

hearing because the plea transcript unequivocally refutes the Defendants claim is

in express and direct conflict with the decision of the Florida Supreme Court in

Roberts v State 568 So 2d 1255 Fla 1990) Kennedy v State 547 So 2d 912

(Fla 1989) and the District courts in Hayes v State No 2D13-1682 (Fla 2d

DCA Sept 4 2013) Jones v State 846 So 2d 1224 (Fla 2d DCA 2003) Nelson

v State 996 So 2d 950 (Fla 2d DCA 2008) McKune v State 953 So 2d 746

(Fla 2d DCA 2007) And is not supported by the evidence in the record

SUMMARY OF ARGUMENTS - II

The majority bases affirmance upon the ground that allowing Telephonic

Testimony over Defense Objection was harmless is in express and direct conflict

with District Court Cases Brown v State 101 So 3d 381 (Fla Dist Ct App 1

Dist 2012) MS v Dept of Children amp Families 6 So 3rd 102 (Fla Dist Ct

App 4th Dist 2009) Cole v Cole 86 So 3d 1175 (Fla Dist Ct App 5 Dist

2012) and Florida Rules of Judicial Administration 2540(d)(1) The transcript

evidence from Mr Ubietas perjures testimony refutes the Majoritys opinion

- 4 shy

SUMMARY OF ARGUMENTS - III

The District Court mistakenly failed to address the second point on Appellants

Briefs thereby neglecting to address the important credibility issue being raised in

reference to Mr Ubieta the focal point of the Rule 3850 filed in the lower court

ARGUMENT

I

The Majority in the District Court contends that a Defendant having

accepted a plea during the course of a criminal case is synonymous to taking a

cyanide pill thereby negating any opportunity to correct errors that may have taken

place in the lower court This decision by the majority is both disturbing and

contrary to Roberts v State 568 So 2d 1255 (Fla 1990) where this Honorable

Court held that

To be entitled to an evidentiary hearing in connection with a claim of ineffective counsel the defendant must allege specific facts which are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant Also see Kennedy v State 547 So 2d 912 (Fla1990)

In the instant case the Appellant was able to point out to the court that his

former counsel Mr Rafael Ubieta had lost his case file and when Mr Ubieta

testified in his defense before the trial court on July 24 2006 he admitted that he

could not find the case file in his private storage thus supporting Defendants

allegation

-5shy

As the 3rd District Court of Appeals Senior Judge Alan Schwartz (The

Dissenting Judge) points out that while allegations of coercion may be negated by

generalized questions such as the Appellant answered during the plea process see

Cartwright v State 112 So 3d 582(Fla 4th DCA 2013) This is clearly not the

issue in the instant case where the Appellants claim of Attorney ineffectiveness is

supported by the irrefutable evidence on the record See Hayes v State No 2D13shy

1682 (Fla 2d DCA Sept42013) holding that general acknowledgements of

satisfaction with counsel do not conclusively refute claims of ineffective assistance

of counsel based on a failure to pursue specific defense Jones v State 846 So 2d

950 (Fla2d DCA 2008) McKune v State 953 So 2d 746 (Fla 2d DCA 2007)

KEY POINT The contention that Appellant failed to meet the burden to establish

the second prong of Strickland v Washington 466 US 668 (1984) is clearly

refuted by the record which shows the case has already prevailed in court on two

separate occasions Bench trial via the Arthur Hearing (Appellants Initial Brief -

App 53) and a Jury Trial on F03-7276 via Williams Rule (R VolI Pg 1-46)

II

The majority has ruled that allowing Mr Ubieta to testify telephonically

over Defense objection was harmless indicates the court has misinterpreted and

misapplied the facts that are on the record Fla R Jud Admin 207 (2006)

clearly states that telephonic testimony can only be allowed if all parties consent

-6shy

That was not the case here as Defense counsel vehemently objected on the record

encompassing 2 frac12 pages worth of transcript (R-507-509) Subsection (3) of the

Rule also requires a notary public or other person authorized to administer oaths to

be present with the witness in order to administer said oath In the instant case

this requirement was not met The Appellant said in a Notice of Supplemental

Authority to the 3d DCA on June 24 2013 Citing Brown v State 101 So 3d 381

(Fla Dist Ct App 1 Dist 2012) which is clearly the controlling case on this

point seeing that the 2 key issues are synonymous between both cases where the

Appellant court held

There was no notary or other person authorized to administer an oath present with Dr Jensen See Fla R Jud Admin 2530(d)(3) (Testimony may be taken through communication equipment only if a notary public or other person authorized to administer oaths in the witnesss jurisdiction is present with the witness and administers the oath consistent with the laws of the jurisdiction We cannot say that the error was harmless Aside from Dr Jensens testimony there was no other evidence to support the trial courts finding that the State proves by clear and convincing evidence that

In the instant case as with Brown v State Mr Ubieta was the only witness

to testify as to the issues pertaining to the missing case file The State failed to

offer any other witness or tangible evidence to substantiate Mr Ubietas claims

Also see Cole v Cole 86 So 3d 1175 (Fla 5th DCA 2012) MS v Dept of

Children and Families 6 So 3d 102 (Fla 4th DCA 2009) holding that the trial

courts erred in allowing telephonic testimony over the objection of a party was

-7shy

harmful error absent any other evidence to support the trial courts finding But

the most important reason the Trial Court erred in allowing the telephonic

testimony deals with section (d)(4) of the rule Confrontational Rights

During the course of Mr Ubietas testimony concerning the lost file he

committed perjury on several occasions emphatically stating that he never had

possession of a video tape which the defense planned to use as exculpatory

evidence during trial and because he was testifying over the telephone - The

Defense was unable to use Ubietas prior transcript testimony for impeachment

purposes where he had the same tape in his hand asking the judge at that particular

hearing to please allow him to play it for the court

KEY NOTE THERE IN LAYS THE PROBLEM WITH ALLOWING

TELEPHONIC TESTIMONY - IT IS IMPOSSIBLE TO HAND OVER

TANGIBLE IMPEACHMENT EVIDENCE TO A WITNESS THAT IS NOT

PRESENT IN THE COURT ROOM THIS WAS EXTREMELY HARMFUL

TO THE DEFENSE

Shortly after this hearing the Defendant wrote a letter to the Trial Court

along with transcript evidence of Mr Ubietas perjures testimony during that

hearing (R 277-299) amp Appellants Initial Brief-App8) in violation of Fl Statute

83702 Fl Statute 837021 asking the court to take the impeachment evidence

into consideration before rendering a ruling to no avail In the Trial Courts order

- 8 shy

Judge Perezs statement finding Mr Ubietas testimony to be credible was not

supported by the evidence that was at this point on the record

III

The District Court seems to have been confused with point II on Appellants brief

II THE LOWER COURTS RULING FINDING MR UBIETA CREDIBLE IS NOT SUPPORTED BY THE EVIDENCE

As it failed to address the issue being raised by the Appellant and erroneously

substituted point II of the lower Trial Case Rule 3850 motion in its place

II NEW LY DISCOVERED EVIDENCE SALGADOS TESTIMONY ABOUT AN INCIDENT IN DECEMBER 2002 IN WHICH SHE STATES THAT PRIOR TO THAT TIME (AND SUBSEQUENT TO THE PLEA IN THIS CASE) RIVERO HAD NEVER LAID A FINGER ON HER

As previously mentioned the second issue dealing with Newly Discovered

Evidence was never raised in Appellants briefs to the 3d DCA and the State

acknowledged this fact on Pg 13 of their Response Brief Given the credibility

issues raised by the Appellant on point II of this brief pertaining to Mr Ubietas

credibility makes this oversight by the District Court of Appeals a significant and

crucial mistake which clearly impaired the ability for a just and well informed

decision This may be an issue offigraverst impression as the Appellant has been unable

to find any case law alluding to a District court mistakenly substituting a

particularpoint on an appellate briefwith onefrom a Lower Court motion

CONCLUSION

WHEREFORE Petitioner asks that this Honorable Court would exercise

its jurisdiction and grant discretionary review in order to consider the merits of

Petitioners argument

Respectfull submitted

035 West 77th St et Apt - 315 Hialea Florida 33014

Cel Phon (786) 285-0590

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this briefwas mailed to NIKOLE HICIANO Assistant Attorney General Office ofAttorney General 444 Brickell Suite 650 Miami Florida 33131 this 10th day of October 2013

JOSE RIVERO

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief is submitted in Times New Roman 14shy

point font

JOSE RIVERO

- 10 shy

APPENDIX

Efjiacuterb 3)(stritt Court of 2(ppeal State of Florida July Term AD 2013

Opinion filed September 25 2013 Not final until disposition of timely filed motion for rehearing

No 3D07-2490 Lower Tribunal No 02-6845

Jose A Rivero Appellant

vs

The State of Florida Appellee

An Appeal from the Circuit Court for Miami-Dade County Jorge Perez Judge

Jose A Rivero in proper person

Pamela Jo Bondi Attorney General and Nikole Hiciano Assistant Attorney General for appellee

Before WELLS and ROTHENBERG JJ and SCHWARTZ Senior Judge

ROTHENBERG J

The defendant Jose Rivero appeals from the denial of his rule 3850 motion

for postconviction relief in which he claims that (1) he was pressured into

accepting the States plea offer because his lawyer had lost his case file and (2)

he had obtained newly discovered evidence that would have resulted in an acquittal

had he proceeded to trial Because the plea transcript unequivocally refutes the

defendants first claim and the evidence the defendant relies on is not newly

discovered evidence or evidence that would likely produce an acquittal the

defendants motion should have been summarily denied We therefore affirm the

trial courts order denying the defendant relief

The defendant seeks a reversal of the trial courts order denying his motion

for postconviction relief on the basis of a procedural error committed by the trial

court when it conducted an unnecessary evidentiary hearing which produced

further proof refuting the defendants claims Although it was error to allow the

defendants trial counsel to testify by telephone over the defendants objection at

the evidentiary hearing see Fla R Jud Admin 2530(d)(1) (permitting testimony

by telephone only if all parties consent) because no further proof was necessary

and the defendants allegations were unequivocally refuted without reliance on the

telephonically obtained testimony the error in this case was clearly harmless

Specifically the defendant was charged with burglary with an assault andor

a battery two counts of battery and criminal mischief and he was facing a

2

potential life sentence if convicted of burglary with an assault or battery The State

alleged that in violation of a domestic violence injunction stay-away order the

defendant drove to the victims home saw her kissing another man and when the

victim would not open the door the defendant kicked the door in fought with the

man he saw kissing the victim and slapped the victim The defendant does not

dispute that he kicked the door in and fought with the male occupant He only

disputes that he slapped the victim The plea offered by the State and accepted by

the defendant was a plea of guilty to the charges a withhold of adjudication six

months of community control followed by thirty months of probation with several

special conditions including a stay-away order from the victims and completion

of a domestic violence program

The relevant portions of the plea colloquy are as follows

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

3

Court Do you believe this plea is in your best interest

Defendant Yes

Court The Court finds a factual basis I find that you are alert and intelligent that you understand the nature and consequences of your plea and that you are represented by good and competent counsel which whom you say you are satisfied I find that you are entering into this plea freely and voluntarily I accept your plea of guilty

(emphasis added)

Thus the defendants claim that he was coerced or pressured to accept the

States very lenient plea offer which resulted in his immediate release from jail1

was unequivocally refuted by the record and the defendants first claim should

have been summarily denied _S_ee Cartwright v State 112 So 3d 582 584 (Fla

4th DCA 2013) In Cartwright the Fourth District recognized that

Under Florida law a defendants claim that his plea was the result of coercion by defense counsel may be conclusively refuted by the defendants responses during plea colloquy and the signed plea form Williams v State 919 So 2d 645 646 (Fla 4th DCA 2006) The record reflects that the court engaged in a thorough plea colloquy with Appellant in which Appellant represented that he understood the parameters of the plea that no one had threatened or coerced him into entering a plea that no one had promised him anything and that no

The defendant had been denied bail after a bond hearing was conducted by the trial court based on the defendants violation of a prior court order prohibiting the defendant from having any contact with the victim

4

1

one had misadvised him or made any misrepresentations to him Thus the record refutes Appellants claim that his plea was coerced

See also Alfred v State 71 So 3d 138 139 (Fla 4th DCA 2011) (A defendant is

bound by his sworn answers during a plea colloquy and cannot later disavow those

answers by asserting that he lied during the colloquy at counsels direction)

Davis v State 938 So 2d 555 557 (Fla 1st DCA 2006) (In the instant case the

appellant clearly states on record that he was satisfied with his attorneys services

Thus he cannot now assert that at the time of the pleas entry he had serious

doubts about his attorneys effectiveness) Rackley v State 571 So 2d 533 535

(Fla 1st DCA 1990) (affirming summary denial of the defendants rule 3850

claim of coercion and noting that on numerous occasions the court had rejected

similar claims in other cases alleging ineffective assistance of counsel or coercion

where oral or written statements made by the defendant at sentencing were to the

contrary and that Rackleys written plea contained statements that he had not been

coerced into entering his guilty plea and that he was satisfied with the services of

his attorney thus refuting his claim of coercion) Loconte v State 382 So 2d 26

26 (Fla 1st DCA 1979) (affirming summary denial of Locontes motion to set

aside his plea which he claimed was the result of coercion and promises where

there was a direct denial of coercion and promises by Loconte during his plea

colloquy)

5

Because the defendant in the instant case clearly stated under oath during his

plea colloquy that he was satisfied with the services of his attorney he was not

being pressured or coerced to accept the States offered plea and he was pleading

guilty because he was guilty and for no other reason he cannot now claim that his

plea was the product of coercion Thus the defendants claim of coercion should

have been summarily denied

Although the trial court erred in allowing the defendants trial counsel to

testify telephonically at the unnecessary evidentiary hearing over the defendants

objection this error was harmless beyond a reasonable doubt where trial counsels

testimony only provided additional evidence to refute the defendants claims See

Golden amp Cowan PA v Estate of Kosofsky 45 So 3d 986 987-88 (Fla 3d DCA

2010) (holding that the trial courts error in allowing telephonic testimony over the

appellants objection and in violation of rule 2530(d)(1) was harmless due to the

existence of other independent evidence which would have supported the trial

courts decision) SA v Dept of Children amp Family Servs 961 So 2d 1066

1067 (Fla 3d DCA 2007) (telephonic testimony permitted over mothers objection

in dependency hearing held to be harmless error because even if the telephonic

testimony was excluded there was other evidence supporting the trial courts

ruling) Quinones v Quinones 870 So 2d 108 109 (Fla 2d DCA 2003) (finding

6

no reversible error where the wife in a dissolution of marriage proceeding was

permitted over objection to testify telephonically)

We additionally reject the defendants second claim of newly discovered

evidence The newly discovered evidence which the defendant claims entitles

him to set aside his plea is the female victims later recantation of her prior sworn

testimony that the defendant slapped her after he kicked in the door of her house

This evidence was not only impeachable by the female victims prior sworn

testimony and statements to the police it would not have played any meaningful

role if the defendant had proceeded to trial The defendant admitted to kicking in

the door entering the house by force and getting into a physical fight with the

male victim These acts constitute a burglary with an assault andor a battery

Thus the defendant has failed to meet his burden to establish the prejudice prong

under Strickland v Washington 466 US 668 (1984)

Accordingly we affirm the trial courts order denying the defendants

motion for postconviction relief

Affirmed

WELLS J concurs

7

Case no 3D07-2490

Jose A Rivero v The State of Florida

SCHWARTZ Senior Judge (dissenting in part)

I disagree with the courts affirmance of the rejection of appellants Florida

Rule of Criminal Procedure 3850 claim of ineffective assistance of counsel which

was based upon the contention that he had no choice but to plead guilty because his

trial lawyer had lost his file including an allegedly exculpatory tape and the

lawyer was therefore unable to effectively defend him Trial counsel who was the

states only witness on this issue was permitted to present testimony directly

contrary to the defendants-that the file was not lost-by telephone without the

defendants consent and indeed over his specific objections There is no doubt that

this is contrary to Florida Rule of Judicial Administration 2540(d)(1) See Brown

v State 101 So 3d 381 (Fla 1st DCA 2012) Cole v Cole 86 So 3d 1175 (Fla

5th DCA 2012) MS v Dept of Children amp Families 6 So 3d 102 (Fla 4th DCA

2009)

The majority bases affirmance upon the ground of harmless error I believe

that this basis for affirmance which was not raised by the state or the trial court at

any stage of the proceedings below or on appeal is incorrect2 The majority

primarily contends that the specific claim of ineffectiveness presented by the

2 We have been unable to discover a prior instance of reversal on the bases assigned by the majority after a hearing on the merits has already been conducted

8

defendant was conclusively negated-obviating the necessity of an evidentiary

hearing at all-by the colloquy at which the plea was tendered and accepted by the

defendant in which the following occurred

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

While it is true that generalized allegations of coercion and the like may

be negated by answers like these during the plea-taking process see Cartwright v

State 112 So 3d 582 (Fla 4th DCA 2013) this is emphatically not the case when

as here claims of specific instances of attorney incapacity or ineffectiveness are

alleged and demonstrated below See Hayes v State No 2D13-1682 (Fla 2d DCA

Sept 4 2013) (holding that general acknowledgements of satisfaction with counsel

do not conclusively refute claims of ineffective assistance of counsel based on a

failure to pursue specific defense) Jones v State 846 So 2d 1224 (Fla 2d DCA

2003) (same) see also Nelson v State 996 So 2d 950 (Fla 2d DCA 2008)

9

McKune v State 953 So 2d 746 (Fla 2d DCA 2007) In my judgment these

decisions rather than the ones cited by the court are controlling on this issue

The court also finds a basis for harmlessness on the claim that the challenged

testimony was merely cumulative Again this is not the case There was no

testimony whatsoever concerning the allegedly lost file and the attendant

circumstances except for the lawyers erroneously admitted telephonic testimony

which was in turn the only basis for the trial judges rejection of the defendants

position As it said

This Court finds that the July 24 2006 hearing testimony of trial counsel Raphael Ubieta completely refutes this claim of the defendant The defendant alleges that defense counsel lost his case file however the testimonial evidence clearly refutes this claim Throughout the hearing Mr Ubieta was asked more than once if he had misplaced the defendants case file each time Mr Ubieta unequivocally responded he had the file it was not lost and he was ready to go to trial if need be When Mr Ubieta was asked whether he was prepared to try the case Mr Ubieta responded in the affirmative This Court finds the hearing testimony of Mr Ubieta credible and compelling

Since the lawyers testimony on the critical issue in the case was directly

contrary to that of the defendant and was accepted by the trial court and-perhaps

most important-because I believe that we cannot fmd that the violation of the

rules was harmless see Brown 101 So 3d at 382 (holding that the trial courts

error in allowing telephonic testimony in violation Florida Rule of Judicial

Administration 2530 was not harmless absent any other evidence to support the

10

trial courts finding) I would therefore remand the cause for the conduct of a new

evidentiary hearing on the ineffective assistance issue See Brown 101 So 3d at

381 Col_e 86 So 3d at 1175 MS 6 So 3d at 102 I agree with the courts

disposition of the newly discovered evidence point

11

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

jar

3729 1272 70 0 1 From psseseprinrandpressaanpound

Date Ac oun Nudu 4 ExpressPackageService 042nii Pack042sesapserseas

NOTE serviceerderhaschungedPicaseselectearefully

MBeintildeossoa s

(

Name Phone e n

SmdqDekyNOT

D E

conglaquo a deg wcu

oskynscu

o

I Address

03 17 Sir S e

a 27 smeroiyNDiankble

a Saeeday0ehmy

8 a e able

city State ZIP $301 S Packaging 042nusdhseans

2 Y r 31Billing R rence FedampEnvelope FadhPak aFedh

Box Fedh Tube

0

S 3 To

rnommicro Sveswamprt egm 6 Special Handling and Delivery Signature Opuons

n-arae d (

Company

_es 500 suam huvAt scra we cennadeilver to P0 boxes or PD coden rszliglultadloom

amp ID turday

No Signa re R red anare ord=hlaquoy

No a

D Signature may on or ps

e

n ct am

re o

Address Use this

AAR S OcircF19cs the HOLD location address or forcontinuationof your shipping address

a -Ob15ct

- ~ a a a a

City State ZIP

e splusmn

TotalPackages

EnisfedEx Anot karQadhcudk below

Recpient ThirdParty CreditCard

TotalWeight TotalDeclaredValuet o

ashCheck

() Easy new Peel-and-Stick airbill No pouch needed Apply airbill directly to your package See directions on back ggpf ==042042tEr$6miniaaianarlaquorsnwa

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courts decision with the Senior Judge Alan R Schwartz Dissenting

SUMMARY OF ARGUMENTS - I

The majority contention that the Defendant was not entitled to an evidentiary

hearing because the plea transcript unequivocally refutes the Defendants claim is

in express and direct conflict with the decision of the Florida Supreme Court in

Roberts v State 568 So 2d 1255 Fla 1990) Kennedy v State 547 So 2d 912

(Fla 1989) and the District courts in Hayes v State No 2D13-1682 (Fla 2d

DCA Sept 4 2013) Jones v State 846 So 2d 1224 (Fla 2d DCA 2003) Nelson

v State 996 So 2d 950 (Fla 2d DCA 2008) McKune v State 953 So 2d 746

(Fla 2d DCA 2007) And is not supported by the evidence in the record

SUMMARY OF ARGUMENTS - II

The majority bases affirmance upon the ground that allowing Telephonic

Testimony over Defense Objection was harmless is in express and direct conflict

with District Court Cases Brown v State 101 So 3d 381 (Fla Dist Ct App 1

Dist 2012) MS v Dept of Children amp Families 6 So 3rd 102 (Fla Dist Ct

App 4th Dist 2009) Cole v Cole 86 So 3d 1175 (Fla Dist Ct App 5 Dist

2012) and Florida Rules of Judicial Administration 2540(d)(1) The transcript

evidence from Mr Ubietas perjures testimony refutes the Majoritys opinion

- 4 shy

SUMMARY OF ARGUMENTS - III

The District Court mistakenly failed to address the second point on Appellants

Briefs thereby neglecting to address the important credibility issue being raised in

reference to Mr Ubieta the focal point of the Rule 3850 filed in the lower court

ARGUMENT

I

The Majority in the District Court contends that a Defendant having

accepted a plea during the course of a criminal case is synonymous to taking a

cyanide pill thereby negating any opportunity to correct errors that may have taken

place in the lower court This decision by the majority is both disturbing and

contrary to Roberts v State 568 So 2d 1255 (Fla 1990) where this Honorable

Court held that

To be entitled to an evidentiary hearing in connection with a claim of ineffective counsel the defendant must allege specific facts which are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant Also see Kennedy v State 547 So 2d 912 (Fla1990)

In the instant case the Appellant was able to point out to the court that his

former counsel Mr Rafael Ubieta had lost his case file and when Mr Ubieta

testified in his defense before the trial court on July 24 2006 he admitted that he

could not find the case file in his private storage thus supporting Defendants

allegation

-5shy

As the 3rd District Court of Appeals Senior Judge Alan Schwartz (The

Dissenting Judge) points out that while allegations of coercion may be negated by

generalized questions such as the Appellant answered during the plea process see

Cartwright v State 112 So 3d 582(Fla 4th DCA 2013) This is clearly not the

issue in the instant case where the Appellants claim of Attorney ineffectiveness is

supported by the irrefutable evidence on the record See Hayes v State No 2D13shy

1682 (Fla 2d DCA Sept42013) holding that general acknowledgements of

satisfaction with counsel do not conclusively refute claims of ineffective assistance

of counsel based on a failure to pursue specific defense Jones v State 846 So 2d

950 (Fla2d DCA 2008) McKune v State 953 So 2d 746 (Fla 2d DCA 2007)

KEY POINT The contention that Appellant failed to meet the burden to establish

the second prong of Strickland v Washington 466 US 668 (1984) is clearly

refuted by the record which shows the case has already prevailed in court on two

separate occasions Bench trial via the Arthur Hearing (Appellants Initial Brief -

App 53) and a Jury Trial on F03-7276 via Williams Rule (R VolI Pg 1-46)

II

The majority has ruled that allowing Mr Ubieta to testify telephonically

over Defense objection was harmless indicates the court has misinterpreted and

misapplied the facts that are on the record Fla R Jud Admin 207 (2006)

clearly states that telephonic testimony can only be allowed if all parties consent

-6shy

That was not the case here as Defense counsel vehemently objected on the record

encompassing 2 frac12 pages worth of transcript (R-507-509) Subsection (3) of the

Rule also requires a notary public or other person authorized to administer oaths to

be present with the witness in order to administer said oath In the instant case

this requirement was not met The Appellant said in a Notice of Supplemental

Authority to the 3d DCA on June 24 2013 Citing Brown v State 101 So 3d 381

(Fla Dist Ct App 1 Dist 2012) which is clearly the controlling case on this

point seeing that the 2 key issues are synonymous between both cases where the

Appellant court held

There was no notary or other person authorized to administer an oath present with Dr Jensen See Fla R Jud Admin 2530(d)(3) (Testimony may be taken through communication equipment only if a notary public or other person authorized to administer oaths in the witnesss jurisdiction is present with the witness and administers the oath consistent with the laws of the jurisdiction We cannot say that the error was harmless Aside from Dr Jensens testimony there was no other evidence to support the trial courts finding that the State proves by clear and convincing evidence that

In the instant case as with Brown v State Mr Ubieta was the only witness

to testify as to the issues pertaining to the missing case file The State failed to

offer any other witness or tangible evidence to substantiate Mr Ubietas claims

Also see Cole v Cole 86 So 3d 1175 (Fla 5th DCA 2012) MS v Dept of

Children and Families 6 So 3d 102 (Fla 4th DCA 2009) holding that the trial

courts erred in allowing telephonic testimony over the objection of a party was

-7shy

harmful error absent any other evidence to support the trial courts finding But

the most important reason the Trial Court erred in allowing the telephonic

testimony deals with section (d)(4) of the rule Confrontational Rights

During the course of Mr Ubietas testimony concerning the lost file he

committed perjury on several occasions emphatically stating that he never had

possession of a video tape which the defense planned to use as exculpatory

evidence during trial and because he was testifying over the telephone - The

Defense was unable to use Ubietas prior transcript testimony for impeachment

purposes where he had the same tape in his hand asking the judge at that particular

hearing to please allow him to play it for the court

KEY NOTE THERE IN LAYS THE PROBLEM WITH ALLOWING

TELEPHONIC TESTIMONY - IT IS IMPOSSIBLE TO HAND OVER

TANGIBLE IMPEACHMENT EVIDENCE TO A WITNESS THAT IS NOT

PRESENT IN THE COURT ROOM THIS WAS EXTREMELY HARMFUL

TO THE DEFENSE

Shortly after this hearing the Defendant wrote a letter to the Trial Court

along with transcript evidence of Mr Ubietas perjures testimony during that

hearing (R 277-299) amp Appellants Initial Brief-App8) in violation of Fl Statute

83702 Fl Statute 837021 asking the court to take the impeachment evidence

into consideration before rendering a ruling to no avail In the Trial Courts order

- 8 shy

Judge Perezs statement finding Mr Ubietas testimony to be credible was not

supported by the evidence that was at this point on the record

III

The District Court seems to have been confused with point II on Appellants brief

II THE LOWER COURTS RULING FINDING MR UBIETA CREDIBLE IS NOT SUPPORTED BY THE EVIDENCE

As it failed to address the issue being raised by the Appellant and erroneously

substituted point II of the lower Trial Case Rule 3850 motion in its place

II NEW LY DISCOVERED EVIDENCE SALGADOS TESTIMONY ABOUT AN INCIDENT IN DECEMBER 2002 IN WHICH SHE STATES THAT PRIOR TO THAT TIME (AND SUBSEQUENT TO THE PLEA IN THIS CASE) RIVERO HAD NEVER LAID A FINGER ON HER

As previously mentioned the second issue dealing with Newly Discovered

Evidence was never raised in Appellants briefs to the 3d DCA and the State

acknowledged this fact on Pg 13 of their Response Brief Given the credibility

issues raised by the Appellant on point II of this brief pertaining to Mr Ubietas

credibility makes this oversight by the District Court of Appeals a significant and

crucial mistake which clearly impaired the ability for a just and well informed

decision This may be an issue offigraverst impression as the Appellant has been unable

to find any case law alluding to a District court mistakenly substituting a

particularpoint on an appellate briefwith onefrom a Lower Court motion

CONCLUSION

WHEREFORE Petitioner asks that this Honorable Court would exercise

its jurisdiction and grant discretionary review in order to consider the merits of

Petitioners argument

Respectfull submitted

035 West 77th St et Apt - 315 Hialea Florida 33014

Cel Phon (786) 285-0590

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this briefwas mailed to NIKOLE HICIANO Assistant Attorney General Office ofAttorney General 444 Brickell Suite 650 Miami Florida 33131 this 10th day of October 2013

JOSE RIVERO

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief is submitted in Times New Roman 14shy

point font

JOSE RIVERO

- 10 shy

APPENDIX

Efjiacuterb 3)(stritt Court of 2(ppeal State of Florida July Term AD 2013

Opinion filed September 25 2013 Not final until disposition of timely filed motion for rehearing

No 3D07-2490 Lower Tribunal No 02-6845

Jose A Rivero Appellant

vs

The State of Florida Appellee

An Appeal from the Circuit Court for Miami-Dade County Jorge Perez Judge

Jose A Rivero in proper person

Pamela Jo Bondi Attorney General and Nikole Hiciano Assistant Attorney General for appellee

Before WELLS and ROTHENBERG JJ and SCHWARTZ Senior Judge

ROTHENBERG J

The defendant Jose Rivero appeals from the denial of his rule 3850 motion

for postconviction relief in which he claims that (1) he was pressured into

accepting the States plea offer because his lawyer had lost his case file and (2)

he had obtained newly discovered evidence that would have resulted in an acquittal

had he proceeded to trial Because the plea transcript unequivocally refutes the

defendants first claim and the evidence the defendant relies on is not newly

discovered evidence or evidence that would likely produce an acquittal the

defendants motion should have been summarily denied We therefore affirm the

trial courts order denying the defendant relief

The defendant seeks a reversal of the trial courts order denying his motion

for postconviction relief on the basis of a procedural error committed by the trial

court when it conducted an unnecessary evidentiary hearing which produced

further proof refuting the defendants claims Although it was error to allow the

defendants trial counsel to testify by telephone over the defendants objection at

the evidentiary hearing see Fla R Jud Admin 2530(d)(1) (permitting testimony

by telephone only if all parties consent) because no further proof was necessary

and the defendants allegations were unequivocally refuted without reliance on the

telephonically obtained testimony the error in this case was clearly harmless

Specifically the defendant was charged with burglary with an assault andor

a battery two counts of battery and criminal mischief and he was facing a

2

potential life sentence if convicted of burglary with an assault or battery The State

alleged that in violation of a domestic violence injunction stay-away order the

defendant drove to the victims home saw her kissing another man and when the

victim would not open the door the defendant kicked the door in fought with the

man he saw kissing the victim and slapped the victim The defendant does not

dispute that he kicked the door in and fought with the male occupant He only

disputes that he slapped the victim The plea offered by the State and accepted by

the defendant was a plea of guilty to the charges a withhold of adjudication six

months of community control followed by thirty months of probation with several

special conditions including a stay-away order from the victims and completion

of a domestic violence program

The relevant portions of the plea colloquy are as follows

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

3

Court Do you believe this plea is in your best interest

Defendant Yes

Court The Court finds a factual basis I find that you are alert and intelligent that you understand the nature and consequences of your plea and that you are represented by good and competent counsel which whom you say you are satisfied I find that you are entering into this plea freely and voluntarily I accept your plea of guilty

(emphasis added)

Thus the defendants claim that he was coerced or pressured to accept the

States very lenient plea offer which resulted in his immediate release from jail1

was unequivocally refuted by the record and the defendants first claim should

have been summarily denied _S_ee Cartwright v State 112 So 3d 582 584 (Fla

4th DCA 2013) In Cartwright the Fourth District recognized that

Under Florida law a defendants claim that his plea was the result of coercion by defense counsel may be conclusively refuted by the defendants responses during plea colloquy and the signed plea form Williams v State 919 So 2d 645 646 (Fla 4th DCA 2006) The record reflects that the court engaged in a thorough plea colloquy with Appellant in which Appellant represented that he understood the parameters of the plea that no one had threatened or coerced him into entering a plea that no one had promised him anything and that no

The defendant had been denied bail after a bond hearing was conducted by the trial court based on the defendants violation of a prior court order prohibiting the defendant from having any contact with the victim

4

1

one had misadvised him or made any misrepresentations to him Thus the record refutes Appellants claim that his plea was coerced

See also Alfred v State 71 So 3d 138 139 (Fla 4th DCA 2011) (A defendant is

bound by his sworn answers during a plea colloquy and cannot later disavow those

answers by asserting that he lied during the colloquy at counsels direction)

Davis v State 938 So 2d 555 557 (Fla 1st DCA 2006) (In the instant case the

appellant clearly states on record that he was satisfied with his attorneys services

Thus he cannot now assert that at the time of the pleas entry he had serious

doubts about his attorneys effectiveness) Rackley v State 571 So 2d 533 535

(Fla 1st DCA 1990) (affirming summary denial of the defendants rule 3850

claim of coercion and noting that on numerous occasions the court had rejected

similar claims in other cases alleging ineffective assistance of counsel or coercion

where oral or written statements made by the defendant at sentencing were to the

contrary and that Rackleys written plea contained statements that he had not been

coerced into entering his guilty plea and that he was satisfied with the services of

his attorney thus refuting his claim of coercion) Loconte v State 382 So 2d 26

26 (Fla 1st DCA 1979) (affirming summary denial of Locontes motion to set

aside his plea which he claimed was the result of coercion and promises where

there was a direct denial of coercion and promises by Loconte during his plea

colloquy)

5

Because the defendant in the instant case clearly stated under oath during his

plea colloquy that he was satisfied with the services of his attorney he was not

being pressured or coerced to accept the States offered plea and he was pleading

guilty because he was guilty and for no other reason he cannot now claim that his

plea was the product of coercion Thus the defendants claim of coercion should

have been summarily denied

Although the trial court erred in allowing the defendants trial counsel to

testify telephonically at the unnecessary evidentiary hearing over the defendants

objection this error was harmless beyond a reasonable doubt where trial counsels

testimony only provided additional evidence to refute the defendants claims See

Golden amp Cowan PA v Estate of Kosofsky 45 So 3d 986 987-88 (Fla 3d DCA

2010) (holding that the trial courts error in allowing telephonic testimony over the

appellants objection and in violation of rule 2530(d)(1) was harmless due to the

existence of other independent evidence which would have supported the trial

courts decision) SA v Dept of Children amp Family Servs 961 So 2d 1066

1067 (Fla 3d DCA 2007) (telephonic testimony permitted over mothers objection

in dependency hearing held to be harmless error because even if the telephonic

testimony was excluded there was other evidence supporting the trial courts

ruling) Quinones v Quinones 870 So 2d 108 109 (Fla 2d DCA 2003) (finding

6

no reversible error where the wife in a dissolution of marriage proceeding was

permitted over objection to testify telephonically)

We additionally reject the defendants second claim of newly discovered

evidence The newly discovered evidence which the defendant claims entitles

him to set aside his plea is the female victims later recantation of her prior sworn

testimony that the defendant slapped her after he kicked in the door of her house

This evidence was not only impeachable by the female victims prior sworn

testimony and statements to the police it would not have played any meaningful

role if the defendant had proceeded to trial The defendant admitted to kicking in

the door entering the house by force and getting into a physical fight with the

male victim These acts constitute a burglary with an assault andor a battery

Thus the defendant has failed to meet his burden to establish the prejudice prong

under Strickland v Washington 466 US 668 (1984)

Accordingly we affirm the trial courts order denying the defendants

motion for postconviction relief

Affirmed

WELLS J concurs

7

Case no 3D07-2490

Jose A Rivero v The State of Florida

SCHWARTZ Senior Judge (dissenting in part)

I disagree with the courts affirmance of the rejection of appellants Florida

Rule of Criminal Procedure 3850 claim of ineffective assistance of counsel which

was based upon the contention that he had no choice but to plead guilty because his

trial lawyer had lost his file including an allegedly exculpatory tape and the

lawyer was therefore unable to effectively defend him Trial counsel who was the

states only witness on this issue was permitted to present testimony directly

contrary to the defendants-that the file was not lost-by telephone without the

defendants consent and indeed over his specific objections There is no doubt that

this is contrary to Florida Rule of Judicial Administration 2540(d)(1) See Brown

v State 101 So 3d 381 (Fla 1st DCA 2012) Cole v Cole 86 So 3d 1175 (Fla

5th DCA 2012) MS v Dept of Children amp Families 6 So 3d 102 (Fla 4th DCA

2009)

The majority bases affirmance upon the ground of harmless error I believe

that this basis for affirmance which was not raised by the state or the trial court at

any stage of the proceedings below or on appeal is incorrect2 The majority

primarily contends that the specific claim of ineffectiveness presented by the

2 We have been unable to discover a prior instance of reversal on the bases assigned by the majority after a hearing on the merits has already been conducted

8

defendant was conclusively negated-obviating the necessity of an evidentiary

hearing at all-by the colloquy at which the plea was tendered and accepted by the

defendant in which the following occurred

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

While it is true that generalized allegations of coercion and the like may

be negated by answers like these during the plea-taking process see Cartwright v

State 112 So 3d 582 (Fla 4th DCA 2013) this is emphatically not the case when

as here claims of specific instances of attorney incapacity or ineffectiveness are

alleged and demonstrated below See Hayes v State No 2D13-1682 (Fla 2d DCA

Sept 4 2013) (holding that general acknowledgements of satisfaction with counsel

do not conclusively refute claims of ineffective assistance of counsel based on a

failure to pursue specific defense) Jones v State 846 So 2d 1224 (Fla 2d DCA

2003) (same) see also Nelson v State 996 So 2d 950 (Fla 2d DCA 2008)

9

McKune v State 953 So 2d 746 (Fla 2d DCA 2007) In my judgment these

decisions rather than the ones cited by the court are controlling on this issue

The court also finds a basis for harmlessness on the claim that the challenged

testimony was merely cumulative Again this is not the case There was no

testimony whatsoever concerning the allegedly lost file and the attendant

circumstances except for the lawyers erroneously admitted telephonic testimony

which was in turn the only basis for the trial judges rejection of the defendants

position As it said

This Court finds that the July 24 2006 hearing testimony of trial counsel Raphael Ubieta completely refutes this claim of the defendant The defendant alleges that defense counsel lost his case file however the testimonial evidence clearly refutes this claim Throughout the hearing Mr Ubieta was asked more than once if he had misplaced the defendants case file each time Mr Ubieta unequivocally responded he had the file it was not lost and he was ready to go to trial if need be When Mr Ubieta was asked whether he was prepared to try the case Mr Ubieta responded in the affirmative This Court finds the hearing testimony of Mr Ubieta credible and compelling

Since the lawyers testimony on the critical issue in the case was directly

contrary to that of the defendant and was accepted by the trial court and-perhaps

most important-because I believe that we cannot fmd that the violation of the

rules was harmless see Brown 101 So 3d at 382 (holding that the trial courts

error in allowing telephonic testimony in violation Florida Rule of Judicial

Administration 2530 was not harmless absent any other evidence to support the

10

trial courts finding) I would therefore remand the cause for the conduct of a new

evidentiary hearing on the ineffective assistance issue See Brown 101 So 3d at

381 Col_e 86 So 3d at 1175 MS 6 So 3d at 102 I agree with the courts

disposition of the newly discovered evidence point

11

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

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Subiect to additional Charges See FedEx ServiCe Guide at fedexcom for details All eerchandise sales final

Visit us at fedexcom Or call 1800GoFedEx

18004633339

November 1 2013 101628 PM

SUMMARY OF ARGUMENTS - III

The District Court mistakenly failed to address the second point on Appellants

Briefs thereby neglecting to address the important credibility issue being raised in

reference to Mr Ubieta the focal point of the Rule 3850 filed in the lower court

ARGUMENT

I

The Majority in the District Court contends that a Defendant having

accepted a plea during the course of a criminal case is synonymous to taking a

cyanide pill thereby negating any opportunity to correct errors that may have taken

place in the lower court This decision by the majority is both disturbing and

contrary to Roberts v State 568 So 2d 1255 (Fla 1990) where this Honorable

Court held that

To be entitled to an evidentiary hearing in connection with a claim of ineffective counsel the defendant must allege specific facts which are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant Also see Kennedy v State 547 So 2d 912 (Fla1990)

In the instant case the Appellant was able to point out to the court that his

former counsel Mr Rafael Ubieta had lost his case file and when Mr Ubieta

testified in his defense before the trial court on July 24 2006 he admitted that he

could not find the case file in his private storage thus supporting Defendants

allegation

-5shy

As the 3rd District Court of Appeals Senior Judge Alan Schwartz (The

Dissenting Judge) points out that while allegations of coercion may be negated by

generalized questions such as the Appellant answered during the plea process see

Cartwright v State 112 So 3d 582(Fla 4th DCA 2013) This is clearly not the

issue in the instant case where the Appellants claim of Attorney ineffectiveness is

supported by the irrefutable evidence on the record See Hayes v State No 2D13shy

1682 (Fla 2d DCA Sept42013) holding that general acknowledgements of

satisfaction with counsel do not conclusively refute claims of ineffective assistance

of counsel based on a failure to pursue specific defense Jones v State 846 So 2d

950 (Fla2d DCA 2008) McKune v State 953 So 2d 746 (Fla 2d DCA 2007)

KEY POINT The contention that Appellant failed to meet the burden to establish

the second prong of Strickland v Washington 466 US 668 (1984) is clearly

refuted by the record which shows the case has already prevailed in court on two

separate occasions Bench trial via the Arthur Hearing (Appellants Initial Brief -

App 53) and a Jury Trial on F03-7276 via Williams Rule (R VolI Pg 1-46)

II

The majority has ruled that allowing Mr Ubieta to testify telephonically

over Defense objection was harmless indicates the court has misinterpreted and

misapplied the facts that are on the record Fla R Jud Admin 207 (2006)

clearly states that telephonic testimony can only be allowed if all parties consent

-6shy

That was not the case here as Defense counsel vehemently objected on the record

encompassing 2 frac12 pages worth of transcript (R-507-509) Subsection (3) of the

Rule also requires a notary public or other person authorized to administer oaths to

be present with the witness in order to administer said oath In the instant case

this requirement was not met The Appellant said in a Notice of Supplemental

Authority to the 3d DCA on June 24 2013 Citing Brown v State 101 So 3d 381

(Fla Dist Ct App 1 Dist 2012) which is clearly the controlling case on this

point seeing that the 2 key issues are synonymous between both cases where the

Appellant court held

There was no notary or other person authorized to administer an oath present with Dr Jensen See Fla R Jud Admin 2530(d)(3) (Testimony may be taken through communication equipment only if a notary public or other person authorized to administer oaths in the witnesss jurisdiction is present with the witness and administers the oath consistent with the laws of the jurisdiction We cannot say that the error was harmless Aside from Dr Jensens testimony there was no other evidence to support the trial courts finding that the State proves by clear and convincing evidence that

In the instant case as with Brown v State Mr Ubieta was the only witness

to testify as to the issues pertaining to the missing case file The State failed to

offer any other witness or tangible evidence to substantiate Mr Ubietas claims

Also see Cole v Cole 86 So 3d 1175 (Fla 5th DCA 2012) MS v Dept of

Children and Families 6 So 3d 102 (Fla 4th DCA 2009) holding that the trial

courts erred in allowing telephonic testimony over the objection of a party was

-7shy

harmful error absent any other evidence to support the trial courts finding But

the most important reason the Trial Court erred in allowing the telephonic

testimony deals with section (d)(4) of the rule Confrontational Rights

During the course of Mr Ubietas testimony concerning the lost file he

committed perjury on several occasions emphatically stating that he never had

possession of a video tape which the defense planned to use as exculpatory

evidence during trial and because he was testifying over the telephone - The

Defense was unable to use Ubietas prior transcript testimony for impeachment

purposes where he had the same tape in his hand asking the judge at that particular

hearing to please allow him to play it for the court

KEY NOTE THERE IN LAYS THE PROBLEM WITH ALLOWING

TELEPHONIC TESTIMONY - IT IS IMPOSSIBLE TO HAND OVER

TANGIBLE IMPEACHMENT EVIDENCE TO A WITNESS THAT IS NOT

PRESENT IN THE COURT ROOM THIS WAS EXTREMELY HARMFUL

TO THE DEFENSE

Shortly after this hearing the Defendant wrote a letter to the Trial Court

along with transcript evidence of Mr Ubietas perjures testimony during that

hearing (R 277-299) amp Appellants Initial Brief-App8) in violation of Fl Statute

83702 Fl Statute 837021 asking the court to take the impeachment evidence

into consideration before rendering a ruling to no avail In the Trial Courts order

- 8 shy

Judge Perezs statement finding Mr Ubietas testimony to be credible was not

supported by the evidence that was at this point on the record

III

The District Court seems to have been confused with point II on Appellants brief

II THE LOWER COURTS RULING FINDING MR UBIETA CREDIBLE IS NOT SUPPORTED BY THE EVIDENCE

As it failed to address the issue being raised by the Appellant and erroneously

substituted point II of the lower Trial Case Rule 3850 motion in its place

II NEW LY DISCOVERED EVIDENCE SALGADOS TESTIMONY ABOUT AN INCIDENT IN DECEMBER 2002 IN WHICH SHE STATES THAT PRIOR TO THAT TIME (AND SUBSEQUENT TO THE PLEA IN THIS CASE) RIVERO HAD NEVER LAID A FINGER ON HER

As previously mentioned the second issue dealing with Newly Discovered

Evidence was never raised in Appellants briefs to the 3d DCA and the State

acknowledged this fact on Pg 13 of their Response Brief Given the credibility

issues raised by the Appellant on point II of this brief pertaining to Mr Ubietas

credibility makes this oversight by the District Court of Appeals a significant and

crucial mistake which clearly impaired the ability for a just and well informed

decision This may be an issue offigraverst impression as the Appellant has been unable

to find any case law alluding to a District court mistakenly substituting a

particularpoint on an appellate briefwith onefrom a Lower Court motion

CONCLUSION

WHEREFORE Petitioner asks that this Honorable Court would exercise

its jurisdiction and grant discretionary review in order to consider the merits of

Petitioners argument

Respectfull submitted

035 West 77th St et Apt - 315 Hialea Florida 33014

Cel Phon (786) 285-0590

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this briefwas mailed to NIKOLE HICIANO Assistant Attorney General Office ofAttorney General 444 Brickell Suite 650 Miami Florida 33131 this 10th day of October 2013

JOSE RIVERO

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief is submitted in Times New Roman 14shy

point font

JOSE RIVERO

- 10 shy

APPENDIX

Efjiacuterb 3)(stritt Court of 2(ppeal State of Florida July Term AD 2013

Opinion filed September 25 2013 Not final until disposition of timely filed motion for rehearing

No 3D07-2490 Lower Tribunal No 02-6845

Jose A Rivero Appellant

vs

The State of Florida Appellee

An Appeal from the Circuit Court for Miami-Dade County Jorge Perez Judge

Jose A Rivero in proper person

Pamela Jo Bondi Attorney General and Nikole Hiciano Assistant Attorney General for appellee

Before WELLS and ROTHENBERG JJ and SCHWARTZ Senior Judge

ROTHENBERG J

The defendant Jose Rivero appeals from the denial of his rule 3850 motion

for postconviction relief in which he claims that (1) he was pressured into

accepting the States plea offer because his lawyer had lost his case file and (2)

he had obtained newly discovered evidence that would have resulted in an acquittal

had he proceeded to trial Because the plea transcript unequivocally refutes the

defendants first claim and the evidence the defendant relies on is not newly

discovered evidence or evidence that would likely produce an acquittal the

defendants motion should have been summarily denied We therefore affirm the

trial courts order denying the defendant relief

The defendant seeks a reversal of the trial courts order denying his motion

for postconviction relief on the basis of a procedural error committed by the trial

court when it conducted an unnecessary evidentiary hearing which produced

further proof refuting the defendants claims Although it was error to allow the

defendants trial counsel to testify by telephone over the defendants objection at

the evidentiary hearing see Fla R Jud Admin 2530(d)(1) (permitting testimony

by telephone only if all parties consent) because no further proof was necessary

and the defendants allegations were unequivocally refuted without reliance on the

telephonically obtained testimony the error in this case was clearly harmless

Specifically the defendant was charged with burglary with an assault andor

a battery two counts of battery and criminal mischief and he was facing a

2

potential life sentence if convicted of burglary with an assault or battery The State

alleged that in violation of a domestic violence injunction stay-away order the

defendant drove to the victims home saw her kissing another man and when the

victim would not open the door the defendant kicked the door in fought with the

man he saw kissing the victim and slapped the victim The defendant does not

dispute that he kicked the door in and fought with the male occupant He only

disputes that he slapped the victim The plea offered by the State and accepted by

the defendant was a plea of guilty to the charges a withhold of adjudication six

months of community control followed by thirty months of probation with several

special conditions including a stay-away order from the victims and completion

of a domestic violence program

The relevant portions of the plea colloquy are as follows

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

3

Court Do you believe this plea is in your best interest

Defendant Yes

Court The Court finds a factual basis I find that you are alert and intelligent that you understand the nature and consequences of your plea and that you are represented by good and competent counsel which whom you say you are satisfied I find that you are entering into this plea freely and voluntarily I accept your plea of guilty

(emphasis added)

Thus the defendants claim that he was coerced or pressured to accept the

States very lenient plea offer which resulted in his immediate release from jail1

was unequivocally refuted by the record and the defendants first claim should

have been summarily denied _S_ee Cartwright v State 112 So 3d 582 584 (Fla

4th DCA 2013) In Cartwright the Fourth District recognized that

Under Florida law a defendants claim that his plea was the result of coercion by defense counsel may be conclusively refuted by the defendants responses during plea colloquy and the signed plea form Williams v State 919 So 2d 645 646 (Fla 4th DCA 2006) The record reflects that the court engaged in a thorough plea colloquy with Appellant in which Appellant represented that he understood the parameters of the plea that no one had threatened or coerced him into entering a plea that no one had promised him anything and that no

The defendant had been denied bail after a bond hearing was conducted by the trial court based on the defendants violation of a prior court order prohibiting the defendant from having any contact with the victim

4

1

one had misadvised him or made any misrepresentations to him Thus the record refutes Appellants claim that his plea was coerced

See also Alfred v State 71 So 3d 138 139 (Fla 4th DCA 2011) (A defendant is

bound by his sworn answers during a plea colloquy and cannot later disavow those

answers by asserting that he lied during the colloquy at counsels direction)

Davis v State 938 So 2d 555 557 (Fla 1st DCA 2006) (In the instant case the

appellant clearly states on record that he was satisfied with his attorneys services

Thus he cannot now assert that at the time of the pleas entry he had serious

doubts about his attorneys effectiveness) Rackley v State 571 So 2d 533 535

(Fla 1st DCA 1990) (affirming summary denial of the defendants rule 3850

claim of coercion and noting that on numerous occasions the court had rejected

similar claims in other cases alleging ineffective assistance of counsel or coercion

where oral or written statements made by the defendant at sentencing were to the

contrary and that Rackleys written plea contained statements that he had not been

coerced into entering his guilty plea and that he was satisfied with the services of

his attorney thus refuting his claim of coercion) Loconte v State 382 So 2d 26

26 (Fla 1st DCA 1979) (affirming summary denial of Locontes motion to set

aside his plea which he claimed was the result of coercion and promises where

there was a direct denial of coercion and promises by Loconte during his plea

colloquy)

5

Because the defendant in the instant case clearly stated under oath during his

plea colloquy that he was satisfied with the services of his attorney he was not

being pressured or coerced to accept the States offered plea and he was pleading

guilty because he was guilty and for no other reason he cannot now claim that his

plea was the product of coercion Thus the defendants claim of coercion should

have been summarily denied

Although the trial court erred in allowing the defendants trial counsel to

testify telephonically at the unnecessary evidentiary hearing over the defendants

objection this error was harmless beyond a reasonable doubt where trial counsels

testimony only provided additional evidence to refute the defendants claims See

Golden amp Cowan PA v Estate of Kosofsky 45 So 3d 986 987-88 (Fla 3d DCA

2010) (holding that the trial courts error in allowing telephonic testimony over the

appellants objection and in violation of rule 2530(d)(1) was harmless due to the

existence of other independent evidence which would have supported the trial

courts decision) SA v Dept of Children amp Family Servs 961 So 2d 1066

1067 (Fla 3d DCA 2007) (telephonic testimony permitted over mothers objection

in dependency hearing held to be harmless error because even if the telephonic

testimony was excluded there was other evidence supporting the trial courts

ruling) Quinones v Quinones 870 So 2d 108 109 (Fla 2d DCA 2003) (finding

6

no reversible error where the wife in a dissolution of marriage proceeding was

permitted over objection to testify telephonically)

We additionally reject the defendants second claim of newly discovered

evidence The newly discovered evidence which the defendant claims entitles

him to set aside his plea is the female victims later recantation of her prior sworn

testimony that the defendant slapped her after he kicked in the door of her house

This evidence was not only impeachable by the female victims prior sworn

testimony and statements to the police it would not have played any meaningful

role if the defendant had proceeded to trial The defendant admitted to kicking in

the door entering the house by force and getting into a physical fight with the

male victim These acts constitute a burglary with an assault andor a battery

Thus the defendant has failed to meet his burden to establish the prejudice prong

under Strickland v Washington 466 US 668 (1984)

Accordingly we affirm the trial courts order denying the defendants

motion for postconviction relief

Affirmed

WELLS J concurs

7

Case no 3D07-2490

Jose A Rivero v The State of Florida

SCHWARTZ Senior Judge (dissenting in part)

I disagree with the courts affirmance of the rejection of appellants Florida

Rule of Criminal Procedure 3850 claim of ineffective assistance of counsel which

was based upon the contention that he had no choice but to plead guilty because his

trial lawyer had lost his file including an allegedly exculpatory tape and the

lawyer was therefore unable to effectively defend him Trial counsel who was the

states only witness on this issue was permitted to present testimony directly

contrary to the defendants-that the file was not lost-by telephone without the

defendants consent and indeed over his specific objections There is no doubt that

this is contrary to Florida Rule of Judicial Administration 2540(d)(1) See Brown

v State 101 So 3d 381 (Fla 1st DCA 2012) Cole v Cole 86 So 3d 1175 (Fla

5th DCA 2012) MS v Dept of Children amp Families 6 So 3d 102 (Fla 4th DCA

2009)

The majority bases affirmance upon the ground of harmless error I believe

that this basis for affirmance which was not raised by the state or the trial court at

any stage of the proceedings below or on appeal is incorrect2 The majority

primarily contends that the specific claim of ineffectiveness presented by the

2 We have been unable to discover a prior instance of reversal on the bases assigned by the majority after a hearing on the merits has already been conducted

8

defendant was conclusively negated-obviating the necessity of an evidentiary

hearing at all-by the colloquy at which the plea was tendered and accepted by the

defendant in which the following occurred

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

While it is true that generalized allegations of coercion and the like may

be negated by answers like these during the plea-taking process see Cartwright v

State 112 So 3d 582 (Fla 4th DCA 2013) this is emphatically not the case when

as here claims of specific instances of attorney incapacity or ineffectiveness are

alleged and demonstrated below See Hayes v State No 2D13-1682 (Fla 2d DCA

Sept 4 2013) (holding that general acknowledgements of satisfaction with counsel

do not conclusively refute claims of ineffective assistance of counsel based on a

failure to pursue specific defense) Jones v State 846 So 2d 1224 (Fla 2d DCA

2003) (same) see also Nelson v State 996 So 2d 950 (Fla 2d DCA 2008)

9

McKune v State 953 So 2d 746 (Fla 2d DCA 2007) In my judgment these

decisions rather than the ones cited by the court are controlling on this issue

The court also finds a basis for harmlessness on the claim that the challenged

testimony was merely cumulative Again this is not the case There was no

testimony whatsoever concerning the allegedly lost file and the attendant

circumstances except for the lawyers erroneously admitted telephonic testimony

which was in turn the only basis for the trial judges rejection of the defendants

position As it said

This Court finds that the July 24 2006 hearing testimony of trial counsel Raphael Ubieta completely refutes this claim of the defendant The defendant alleges that defense counsel lost his case file however the testimonial evidence clearly refutes this claim Throughout the hearing Mr Ubieta was asked more than once if he had misplaced the defendants case file each time Mr Ubieta unequivocally responded he had the file it was not lost and he was ready to go to trial if need be When Mr Ubieta was asked whether he was prepared to try the case Mr Ubieta responded in the affirmative This Court finds the hearing testimony of Mr Ubieta credible and compelling

Since the lawyers testimony on the critical issue in the case was directly

contrary to that of the defendant and was accepted by the trial court and-perhaps

most important-because I believe that we cannot fmd that the violation of the

rules was harmless see Brown 101 So 3d at 382 (holding that the trial courts

error in allowing telephonic testimony in violation Florida Rule of Judicial

Administration 2530 was not harmless absent any other evidence to support the

10

trial courts finding) I would therefore remand the cause for the conduct of a new

evidentiary hearing on the ineffective assistance issue See Brown 101 So 3d at

381 Col_e 86 So 3d at 1175 MS 6 So 3d at 102 I agree with the courts

disposition of the newly discovered evidence point

11

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

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November 1 2013 101628 PM

As the 3rd District Court of Appeals Senior Judge Alan Schwartz (The

Dissenting Judge) points out that while allegations of coercion may be negated by

generalized questions such as the Appellant answered during the plea process see

Cartwright v State 112 So 3d 582(Fla 4th DCA 2013) This is clearly not the

issue in the instant case where the Appellants claim of Attorney ineffectiveness is

supported by the irrefutable evidence on the record See Hayes v State No 2D13shy

1682 (Fla 2d DCA Sept42013) holding that general acknowledgements of

satisfaction with counsel do not conclusively refute claims of ineffective assistance

of counsel based on a failure to pursue specific defense Jones v State 846 So 2d

950 (Fla2d DCA 2008) McKune v State 953 So 2d 746 (Fla 2d DCA 2007)

KEY POINT The contention that Appellant failed to meet the burden to establish

the second prong of Strickland v Washington 466 US 668 (1984) is clearly

refuted by the record which shows the case has already prevailed in court on two

separate occasions Bench trial via the Arthur Hearing (Appellants Initial Brief -

App 53) and a Jury Trial on F03-7276 via Williams Rule (R VolI Pg 1-46)

II

The majority has ruled that allowing Mr Ubieta to testify telephonically

over Defense objection was harmless indicates the court has misinterpreted and

misapplied the facts that are on the record Fla R Jud Admin 207 (2006)

clearly states that telephonic testimony can only be allowed if all parties consent

-6shy

That was not the case here as Defense counsel vehemently objected on the record

encompassing 2 frac12 pages worth of transcript (R-507-509) Subsection (3) of the

Rule also requires a notary public or other person authorized to administer oaths to

be present with the witness in order to administer said oath In the instant case

this requirement was not met The Appellant said in a Notice of Supplemental

Authority to the 3d DCA on June 24 2013 Citing Brown v State 101 So 3d 381

(Fla Dist Ct App 1 Dist 2012) which is clearly the controlling case on this

point seeing that the 2 key issues are synonymous between both cases where the

Appellant court held

There was no notary or other person authorized to administer an oath present with Dr Jensen See Fla R Jud Admin 2530(d)(3) (Testimony may be taken through communication equipment only if a notary public or other person authorized to administer oaths in the witnesss jurisdiction is present with the witness and administers the oath consistent with the laws of the jurisdiction We cannot say that the error was harmless Aside from Dr Jensens testimony there was no other evidence to support the trial courts finding that the State proves by clear and convincing evidence that

In the instant case as with Brown v State Mr Ubieta was the only witness

to testify as to the issues pertaining to the missing case file The State failed to

offer any other witness or tangible evidence to substantiate Mr Ubietas claims

Also see Cole v Cole 86 So 3d 1175 (Fla 5th DCA 2012) MS v Dept of

Children and Families 6 So 3d 102 (Fla 4th DCA 2009) holding that the trial

courts erred in allowing telephonic testimony over the objection of a party was

-7shy

harmful error absent any other evidence to support the trial courts finding But

the most important reason the Trial Court erred in allowing the telephonic

testimony deals with section (d)(4) of the rule Confrontational Rights

During the course of Mr Ubietas testimony concerning the lost file he

committed perjury on several occasions emphatically stating that he never had

possession of a video tape which the defense planned to use as exculpatory

evidence during trial and because he was testifying over the telephone - The

Defense was unable to use Ubietas prior transcript testimony for impeachment

purposes where he had the same tape in his hand asking the judge at that particular

hearing to please allow him to play it for the court

KEY NOTE THERE IN LAYS THE PROBLEM WITH ALLOWING

TELEPHONIC TESTIMONY - IT IS IMPOSSIBLE TO HAND OVER

TANGIBLE IMPEACHMENT EVIDENCE TO A WITNESS THAT IS NOT

PRESENT IN THE COURT ROOM THIS WAS EXTREMELY HARMFUL

TO THE DEFENSE

Shortly after this hearing the Defendant wrote a letter to the Trial Court

along with transcript evidence of Mr Ubietas perjures testimony during that

hearing (R 277-299) amp Appellants Initial Brief-App8) in violation of Fl Statute

83702 Fl Statute 837021 asking the court to take the impeachment evidence

into consideration before rendering a ruling to no avail In the Trial Courts order

- 8 shy

Judge Perezs statement finding Mr Ubietas testimony to be credible was not

supported by the evidence that was at this point on the record

III

The District Court seems to have been confused with point II on Appellants brief

II THE LOWER COURTS RULING FINDING MR UBIETA CREDIBLE IS NOT SUPPORTED BY THE EVIDENCE

As it failed to address the issue being raised by the Appellant and erroneously

substituted point II of the lower Trial Case Rule 3850 motion in its place

II NEW LY DISCOVERED EVIDENCE SALGADOS TESTIMONY ABOUT AN INCIDENT IN DECEMBER 2002 IN WHICH SHE STATES THAT PRIOR TO THAT TIME (AND SUBSEQUENT TO THE PLEA IN THIS CASE) RIVERO HAD NEVER LAID A FINGER ON HER

As previously mentioned the second issue dealing with Newly Discovered

Evidence was never raised in Appellants briefs to the 3d DCA and the State

acknowledged this fact on Pg 13 of their Response Brief Given the credibility

issues raised by the Appellant on point II of this brief pertaining to Mr Ubietas

credibility makes this oversight by the District Court of Appeals a significant and

crucial mistake which clearly impaired the ability for a just and well informed

decision This may be an issue offigraverst impression as the Appellant has been unable

to find any case law alluding to a District court mistakenly substituting a

particularpoint on an appellate briefwith onefrom a Lower Court motion

CONCLUSION

WHEREFORE Petitioner asks that this Honorable Court would exercise

its jurisdiction and grant discretionary review in order to consider the merits of

Petitioners argument

Respectfull submitted

035 West 77th St et Apt - 315 Hialea Florida 33014

Cel Phon (786) 285-0590

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this briefwas mailed to NIKOLE HICIANO Assistant Attorney General Office ofAttorney General 444 Brickell Suite 650 Miami Florida 33131 this 10th day of October 2013

JOSE RIVERO

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief is submitted in Times New Roman 14shy

point font

JOSE RIVERO

- 10 shy

APPENDIX

Efjiacuterb 3)(stritt Court of 2(ppeal State of Florida July Term AD 2013

Opinion filed September 25 2013 Not final until disposition of timely filed motion for rehearing

No 3D07-2490 Lower Tribunal No 02-6845

Jose A Rivero Appellant

vs

The State of Florida Appellee

An Appeal from the Circuit Court for Miami-Dade County Jorge Perez Judge

Jose A Rivero in proper person

Pamela Jo Bondi Attorney General and Nikole Hiciano Assistant Attorney General for appellee

Before WELLS and ROTHENBERG JJ and SCHWARTZ Senior Judge

ROTHENBERG J

The defendant Jose Rivero appeals from the denial of his rule 3850 motion

for postconviction relief in which he claims that (1) he was pressured into

accepting the States plea offer because his lawyer had lost his case file and (2)

he had obtained newly discovered evidence that would have resulted in an acquittal

had he proceeded to trial Because the plea transcript unequivocally refutes the

defendants first claim and the evidence the defendant relies on is not newly

discovered evidence or evidence that would likely produce an acquittal the

defendants motion should have been summarily denied We therefore affirm the

trial courts order denying the defendant relief

The defendant seeks a reversal of the trial courts order denying his motion

for postconviction relief on the basis of a procedural error committed by the trial

court when it conducted an unnecessary evidentiary hearing which produced

further proof refuting the defendants claims Although it was error to allow the

defendants trial counsel to testify by telephone over the defendants objection at

the evidentiary hearing see Fla R Jud Admin 2530(d)(1) (permitting testimony

by telephone only if all parties consent) because no further proof was necessary

and the defendants allegations were unequivocally refuted without reliance on the

telephonically obtained testimony the error in this case was clearly harmless

Specifically the defendant was charged with burglary with an assault andor

a battery two counts of battery and criminal mischief and he was facing a

2

potential life sentence if convicted of burglary with an assault or battery The State

alleged that in violation of a domestic violence injunction stay-away order the

defendant drove to the victims home saw her kissing another man and when the

victim would not open the door the defendant kicked the door in fought with the

man he saw kissing the victim and slapped the victim The defendant does not

dispute that he kicked the door in and fought with the male occupant He only

disputes that he slapped the victim The plea offered by the State and accepted by

the defendant was a plea of guilty to the charges a withhold of adjudication six

months of community control followed by thirty months of probation with several

special conditions including a stay-away order from the victims and completion

of a domestic violence program

The relevant portions of the plea colloquy are as follows

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

3

Court Do you believe this plea is in your best interest

Defendant Yes

Court The Court finds a factual basis I find that you are alert and intelligent that you understand the nature and consequences of your plea and that you are represented by good and competent counsel which whom you say you are satisfied I find that you are entering into this plea freely and voluntarily I accept your plea of guilty

(emphasis added)

Thus the defendants claim that he was coerced or pressured to accept the

States very lenient plea offer which resulted in his immediate release from jail1

was unequivocally refuted by the record and the defendants first claim should

have been summarily denied _S_ee Cartwright v State 112 So 3d 582 584 (Fla

4th DCA 2013) In Cartwright the Fourth District recognized that

Under Florida law a defendants claim that his plea was the result of coercion by defense counsel may be conclusively refuted by the defendants responses during plea colloquy and the signed plea form Williams v State 919 So 2d 645 646 (Fla 4th DCA 2006) The record reflects that the court engaged in a thorough plea colloquy with Appellant in which Appellant represented that he understood the parameters of the plea that no one had threatened or coerced him into entering a plea that no one had promised him anything and that no

The defendant had been denied bail after a bond hearing was conducted by the trial court based on the defendants violation of a prior court order prohibiting the defendant from having any contact with the victim

4

1

one had misadvised him or made any misrepresentations to him Thus the record refutes Appellants claim that his plea was coerced

See also Alfred v State 71 So 3d 138 139 (Fla 4th DCA 2011) (A defendant is

bound by his sworn answers during a plea colloquy and cannot later disavow those

answers by asserting that he lied during the colloquy at counsels direction)

Davis v State 938 So 2d 555 557 (Fla 1st DCA 2006) (In the instant case the

appellant clearly states on record that he was satisfied with his attorneys services

Thus he cannot now assert that at the time of the pleas entry he had serious

doubts about his attorneys effectiveness) Rackley v State 571 So 2d 533 535

(Fla 1st DCA 1990) (affirming summary denial of the defendants rule 3850

claim of coercion and noting that on numerous occasions the court had rejected

similar claims in other cases alleging ineffective assistance of counsel or coercion

where oral or written statements made by the defendant at sentencing were to the

contrary and that Rackleys written plea contained statements that he had not been

coerced into entering his guilty plea and that he was satisfied with the services of

his attorney thus refuting his claim of coercion) Loconte v State 382 So 2d 26

26 (Fla 1st DCA 1979) (affirming summary denial of Locontes motion to set

aside his plea which he claimed was the result of coercion and promises where

there was a direct denial of coercion and promises by Loconte during his plea

colloquy)

5

Because the defendant in the instant case clearly stated under oath during his

plea colloquy that he was satisfied with the services of his attorney he was not

being pressured or coerced to accept the States offered plea and he was pleading

guilty because he was guilty and for no other reason he cannot now claim that his

plea was the product of coercion Thus the defendants claim of coercion should

have been summarily denied

Although the trial court erred in allowing the defendants trial counsel to

testify telephonically at the unnecessary evidentiary hearing over the defendants

objection this error was harmless beyond a reasonable doubt where trial counsels

testimony only provided additional evidence to refute the defendants claims See

Golden amp Cowan PA v Estate of Kosofsky 45 So 3d 986 987-88 (Fla 3d DCA

2010) (holding that the trial courts error in allowing telephonic testimony over the

appellants objection and in violation of rule 2530(d)(1) was harmless due to the

existence of other independent evidence which would have supported the trial

courts decision) SA v Dept of Children amp Family Servs 961 So 2d 1066

1067 (Fla 3d DCA 2007) (telephonic testimony permitted over mothers objection

in dependency hearing held to be harmless error because even if the telephonic

testimony was excluded there was other evidence supporting the trial courts

ruling) Quinones v Quinones 870 So 2d 108 109 (Fla 2d DCA 2003) (finding

6

no reversible error where the wife in a dissolution of marriage proceeding was

permitted over objection to testify telephonically)

We additionally reject the defendants second claim of newly discovered

evidence The newly discovered evidence which the defendant claims entitles

him to set aside his plea is the female victims later recantation of her prior sworn

testimony that the defendant slapped her after he kicked in the door of her house

This evidence was not only impeachable by the female victims prior sworn

testimony and statements to the police it would not have played any meaningful

role if the defendant had proceeded to trial The defendant admitted to kicking in

the door entering the house by force and getting into a physical fight with the

male victim These acts constitute a burglary with an assault andor a battery

Thus the defendant has failed to meet his burden to establish the prejudice prong

under Strickland v Washington 466 US 668 (1984)

Accordingly we affirm the trial courts order denying the defendants

motion for postconviction relief

Affirmed

WELLS J concurs

7

Case no 3D07-2490

Jose A Rivero v The State of Florida

SCHWARTZ Senior Judge (dissenting in part)

I disagree with the courts affirmance of the rejection of appellants Florida

Rule of Criminal Procedure 3850 claim of ineffective assistance of counsel which

was based upon the contention that he had no choice but to plead guilty because his

trial lawyer had lost his file including an allegedly exculpatory tape and the

lawyer was therefore unable to effectively defend him Trial counsel who was the

states only witness on this issue was permitted to present testimony directly

contrary to the defendants-that the file was not lost-by telephone without the

defendants consent and indeed over his specific objections There is no doubt that

this is contrary to Florida Rule of Judicial Administration 2540(d)(1) See Brown

v State 101 So 3d 381 (Fla 1st DCA 2012) Cole v Cole 86 So 3d 1175 (Fla

5th DCA 2012) MS v Dept of Children amp Families 6 So 3d 102 (Fla 4th DCA

2009)

The majority bases affirmance upon the ground of harmless error I believe

that this basis for affirmance which was not raised by the state or the trial court at

any stage of the proceedings below or on appeal is incorrect2 The majority

primarily contends that the specific claim of ineffectiveness presented by the

2 We have been unable to discover a prior instance of reversal on the bases assigned by the majority after a hearing on the merits has already been conducted

8

defendant was conclusively negated-obviating the necessity of an evidentiary

hearing at all-by the colloquy at which the plea was tendered and accepted by the

defendant in which the following occurred

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

While it is true that generalized allegations of coercion and the like may

be negated by answers like these during the plea-taking process see Cartwright v

State 112 So 3d 582 (Fla 4th DCA 2013) this is emphatically not the case when

as here claims of specific instances of attorney incapacity or ineffectiveness are

alleged and demonstrated below See Hayes v State No 2D13-1682 (Fla 2d DCA

Sept 4 2013) (holding that general acknowledgements of satisfaction with counsel

do not conclusively refute claims of ineffective assistance of counsel based on a

failure to pursue specific defense) Jones v State 846 So 2d 1224 (Fla 2d DCA

2003) (same) see also Nelson v State 996 So 2d 950 (Fla 2d DCA 2008)

9

McKune v State 953 So 2d 746 (Fla 2d DCA 2007) In my judgment these

decisions rather than the ones cited by the court are controlling on this issue

The court also finds a basis for harmlessness on the claim that the challenged

testimony was merely cumulative Again this is not the case There was no

testimony whatsoever concerning the allegedly lost file and the attendant

circumstances except for the lawyers erroneously admitted telephonic testimony

which was in turn the only basis for the trial judges rejection of the defendants

position As it said

This Court finds that the July 24 2006 hearing testimony of trial counsel Raphael Ubieta completely refutes this claim of the defendant The defendant alleges that defense counsel lost his case file however the testimonial evidence clearly refutes this claim Throughout the hearing Mr Ubieta was asked more than once if he had misplaced the defendants case file each time Mr Ubieta unequivocally responded he had the file it was not lost and he was ready to go to trial if need be When Mr Ubieta was asked whether he was prepared to try the case Mr Ubieta responded in the affirmative This Court finds the hearing testimony of Mr Ubieta credible and compelling

Since the lawyers testimony on the critical issue in the case was directly

contrary to that of the defendant and was accepted by the trial court and-perhaps

most important-because I believe that we cannot fmd that the violation of the

rules was harmless see Brown 101 So 3d at 382 (holding that the trial courts

error in allowing telephonic testimony in violation Florida Rule of Judicial

Administration 2530 was not harmless absent any other evidence to support the

10

trial courts finding) I would therefore remand the cause for the conduct of a new

evidentiary hearing on the ineffective assistance issue See Brown 101 So 3d at

381 Col_e 86 So 3d at 1175 MS 6 So 3d at 102 I agree with the courts

disposition of the newly discovered evidence point

11

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

jar

3729 1272 70 0 1 From psseseprinrandpressaanpound

Date Ac oun Nudu 4 ExpressPackageService 042nii Pack042sesapserseas

NOTE serviceerderhaschungedPicaseselectearefully

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TotalPackages

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ashCheck

() Easy new Peel-and-Stick airbill No pouch needed Apply airbill directly to your package See directions on back ggpf ==042042tEr$6miniaaianarlaquorsnwa

asetVu042PanH6M042copyNt2FedEx+PRINTEDINUSA SRF

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November 1 2013 101628 PM

That was not the case here as Defense counsel vehemently objected on the record

encompassing 2 frac12 pages worth of transcript (R-507-509) Subsection (3) of the

Rule also requires a notary public or other person authorized to administer oaths to

be present with the witness in order to administer said oath In the instant case

this requirement was not met The Appellant said in a Notice of Supplemental

Authority to the 3d DCA on June 24 2013 Citing Brown v State 101 So 3d 381

(Fla Dist Ct App 1 Dist 2012) which is clearly the controlling case on this

point seeing that the 2 key issues are synonymous between both cases where the

Appellant court held

There was no notary or other person authorized to administer an oath present with Dr Jensen See Fla R Jud Admin 2530(d)(3) (Testimony may be taken through communication equipment only if a notary public or other person authorized to administer oaths in the witnesss jurisdiction is present with the witness and administers the oath consistent with the laws of the jurisdiction We cannot say that the error was harmless Aside from Dr Jensens testimony there was no other evidence to support the trial courts finding that the State proves by clear and convincing evidence that

In the instant case as with Brown v State Mr Ubieta was the only witness

to testify as to the issues pertaining to the missing case file The State failed to

offer any other witness or tangible evidence to substantiate Mr Ubietas claims

Also see Cole v Cole 86 So 3d 1175 (Fla 5th DCA 2012) MS v Dept of

Children and Families 6 So 3d 102 (Fla 4th DCA 2009) holding that the trial

courts erred in allowing telephonic testimony over the objection of a party was

-7shy

harmful error absent any other evidence to support the trial courts finding But

the most important reason the Trial Court erred in allowing the telephonic

testimony deals with section (d)(4) of the rule Confrontational Rights

During the course of Mr Ubietas testimony concerning the lost file he

committed perjury on several occasions emphatically stating that he never had

possession of a video tape which the defense planned to use as exculpatory

evidence during trial and because he was testifying over the telephone - The

Defense was unable to use Ubietas prior transcript testimony for impeachment

purposes where he had the same tape in his hand asking the judge at that particular

hearing to please allow him to play it for the court

KEY NOTE THERE IN LAYS THE PROBLEM WITH ALLOWING

TELEPHONIC TESTIMONY - IT IS IMPOSSIBLE TO HAND OVER

TANGIBLE IMPEACHMENT EVIDENCE TO A WITNESS THAT IS NOT

PRESENT IN THE COURT ROOM THIS WAS EXTREMELY HARMFUL

TO THE DEFENSE

Shortly after this hearing the Defendant wrote a letter to the Trial Court

along with transcript evidence of Mr Ubietas perjures testimony during that

hearing (R 277-299) amp Appellants Initial Brief-App8) in violation of Fl Statute

83702 Fl Statute 837021 asking the court to take the impeachment evidence

into consideration before rendering a ruling to no avail In the Trial Courts order

- 8 shy

Judge Perezs statement finding Mr Ubietas testimony to be credible was not

supported by the evidence that was at this point on the record

III

The District Court seems to have been confused with point II on Appellants brief

II THE LOWER COURTS RULING FINDING MR UBIETA CREDIBLE IS NOT SUPPORTED BY THE EVIDENCE

As it failed to address the issue being raised by the Appellant and erroneously

substituted point II of the lower Trial Case Rule 3850 motion in its place

II NEW LY DISCOVERED EVIDENCE SALGADOS TESTIMONY ABOUT AN INCIDENT IN DECEMBER 2002 IN WHICH SHE STATES THAT PRIOR TO THAT TIME (AND SUBSEQUENT TO THE PLEA IN THIS CASE) RIVERO HAD NEVER LAID A FINGER ON HER

As previously mentioned the second issue dealing with Newly Discovered

Evidence was never raised in Appellants briefs to the 3d DCA and the State

acknowledged this fact on Pg 13 of their Response Brief Given the credibility

issues raised by the Appellant on point II of this brief pertaining to Mr Ubietas

credibility makes this oversight by the District Court of Appeals a significant and

crucial mistake which clearly impaired the ability for a just and well informed

decision This may be an issue offigraverst impression as the Appellant has been unable

to find any case law alluding to a District court mistakenly substituting a

particularpoint on an appellate briefwith onefrom a Lower Court motion

CONCLUSION

WHEREFORE Petitioner asks that this Honorable Court would exercise

its jurisdiction and grant discretionary review in order to consider the merits of

Petitioners argument

Respectfull submitted

035 West 77th St et Apt - 315 Hialea Florida 33014

Cel Phon (786) 285-0590

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this briefwas mailed to NIKOLE HICIANO Assistant Attorney General Office ofAttorney General 444 Brickell Suite 650 Miami Florida 33131 this 10th day of October 2013

JOSE RIVERO

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief is submitted in Times New Roman 14shy

point font

JOSE RIVERO

- 10 shy

APPENDIX

Efjiacuterb 3)(stritt Court of 2(ppeal State of Florida July Term AD 2013

Opinion filed September 25 2013 Not final until disposition of timely filed motion for rehearing

No 3D07-2490 Lower Tribunal No 02-6845

Jose A Rivero Appellant

vs

The State of Florida Appellee

An Appeal from the Circuit Court for Miami-Dade County Jorge Perez Judge

Jose A Rivero in proper person

Pamela Jo Bondi Attorney General and Nikole Hiciano Assistant Attorney General for appellee

Before WELLS and ROTHENBERG JJ and SCHWARTZ Senior Judge

ROTHENBERG J

The defendant Jose Rivero appeals from the denial of his rule 3850 motion

for postconviction relief in which he claims that (1) he was pressured into

accepting the States plea offer because his lawyer had lost his case file and (2)

he had obtained newly discovered evidence that would have resulted in an acquittal

had he proceeded to trial Because the plea transcript unequivocally refutes the

defendants first claim and the evidence the defendant relies on is not newly

discovered evidence or evidence that would likely produce an acquittal the

defendants motion should have been summarily denied We therefore affirm the

trial courts order denying the defendant relief

The defendant seeks a reversal of the trial courts order denying his motion

for postconviction relief on the basis of a procedural error committed by the trial

court when it conducted an unnecessary evidentiary hearing which produced

further proof refuting the defendants claims Although it was error to allow the

defendants trial counsel to testify by telephone over the defendants objection at

the evidentiary hearing see Fla R Jud Admin 2530(d)(1) (permitting testimony

by telephone only if all parties consent) because no further proof was necessary

and the defendants allegations were unequivocally refuted without reliance on the

telephonically obtained testimony the error in this case was clearly harmless

Specifically the defendant was charged with burglary with an assault andor

a battery two counts of battery and criminal mischief and he was facing a

2

potential life sentence if convicted of burglary with an assault or battery The State

alleged that in violation of a domestic violence injunction stay-away order the

defendant drove to the victims home saw her kissing another man and when the

victim would not open the door the defendant kicked the door in fought with the

man he saw kissing the victim and slapped the victim The defendant does not

dispute that he kicked the door in and fought with the male occupant He only

disputes that he slapped the victim The plea offered by the State and accepted by

the defendant was a plea of guilty to the charges a withhold of adjudication six

months of community control followed by thirty months of probation with several

special conditions including a stay-away order from the victims and completion

of a domestic violence program

The relevant portions of the plea colloquy are as follows

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

3

Court Do you believe this plea is in your best interest

Defendant Yes

Court The Court finds a factual basis I find that you are alert and intelligent that you understand the nature and consequences of your plea and that you are represented by good and competent counsel which whom you say you are satisfied I find that you are entering into this plea freely and voluntarily I accept your plea of guilty

(emphasis added)

Thus the defendants claim that he was coerced or pressured to accept the

States very lenient plea offer which resulted in his immediate release from jail1

was unequivocally refuted by the record and the defendants first claim should

have been summarily denied _S_ee Cartwright v State 112 So 3d 582 584 (Fla

4th DCA 2013) In Cartwright the Fourth District recognized that

Under Florida law a defendants claim that his plea was the result of coercion by defense counsel may be conclusively refuted by the defendants responses during plea colloquy and the signed plea form Williams v State 919 So 2d 645 646 (Fla 4th DCA 2006) The record reflects that the court engaged in a thorough plea colloquy with Appellant in which Appellant represented that he understood the parameters of the plea that no one had threatened or coerced him into entering a plea that no one had promised him anything and that no

The defendant had been denied bail after a bond hearing was conducted by the trial court based on the defendants violation of a prior court order prohibiting the defendant from having any contact with the victim

4

1

one had misadvised him or made any misrepresentations to him Thus the record refutes Appellants claim that his plea was coerced

See also Alfred v State 71 So 3d 138 139 (Fla 4th DCA 2011) (A defendant is

bound by his sworn answers during a plea colloquy and cannot later disavow those

answers by asserting that he lied during the colloquy at counsels direction)

Davis v State 938 So 2d 555 557 (Fla 1st DCA 2006) (In the instant case the

appellant clearly states on record that he was satisfied with his attorneys services

Thus he cannot now assert that at the time of the pleas entry he had serious

doubts about his attorneys effectiveness) Rackley v State 571 So 2d 533 535

(Fla 1st DCA 1990) (affirming summary denial of the defendants rule 3850

claim of coercion and noting that on numerous occasions the court had rejected

similar claims in other cases alleging ineffective assistance of counsel or coercion

where oral or written statements made by the defendant at sentencing were to the

contrary and that Rackleys written plea contained statements that he had not been

coerced into entering his guilty plea and that he was satisfied with the services of

his attorney thus refuting his claim of coercion) Loconte v State 382 So 2d 26

26 (Fla 1st DCA 1979) (affirming summary denial of Locontes motion to set

aside his plea which he claimed was the result of coercion and promises where

there was a direct denial of coercion and promises by Loconte during his plea

colloquy)

5

Because the defendant in the instant case clearly stated under oath during his

plea colloquy that he was satisfied with the services of his attorney he was not

being pressured or coerced to accept the States offered plea and he was pleading

guilty because he was guilty and for no other reason he cannot now claim that his

plea was the product of coercion Thus the defendants claim of coercion should

have been summarily denied

Although the trial court erred in allowing the defendants trial counsel to

testify telephonically at the unnecessary evidentiary hearing over the defendants

objection this error was harmless beyond a reasonable doubt where trial counsels

testimony only provided additional evidence to refute the defendants claims See

Golden amp Cowan PA v Estate of Kosofsky 45 So 3d 986 987-88 (Fla 3d DCA

2010) (holding that the trial courts error in allowing telephonic testimony over the

appellants objection and in violation of rule 2530(d)(1) was harmless due to the

existence of other independent evidence which would have supported the trial

courts decision) SA v Dept of Children amp Family Servs 961 So 2d 1066

1067 (Fla 3d DCA 2007) (telephonic testimony permitted over mothers objection

in dependency hearing held to be harmless error because even if the telephonic

testimony was excluded there was other evidence supporting the trial courts

ruling) Quinones v Quinones 870 So 2d 108 109 (Fla 2d DCA 2003) (finding

6

no reversible error where the wife in a dissolution of marriage proceeding was

permitted over objection to testify telephonically)

We additionally reject the defendants second claim of newly discovered

evidence The newly discovered evidence which the defendant claims entitles

him to set aside his plea is the female victims later recantation of her prior sworn

testimony that the defendant slapped her after he kicked in the door of her house

This evidence was not only impeachable by the female victims prior sworn

testimony and statements to the police it would not have played any meaningful

role if the defendant had proceeded to trial The defendant admitted to kicking in

the door entering the house by force and getting into a physical fight with the

male victim These acts constitute a burglary with an assault andor a battery

Thus the defendant has failed to meet his burden to establish the prejudice prong

under Strickland v Washington 466 US 668 (1984)

Accordingly we affirm the trial courts order denying the defendants

motion for postconviction relief

Affirmed

WELLS J concurs

7

Case no 3D07-2490

Jose A Rivero v The State of Florida

SCHWARTZ Senior Judge (dissenting in part)

I disagree with the courts affirmance of the rejection of appellants Florida

Rule of Criminal Procedure 3850 claim of ineffective assistance of counsel which

was based upon the contention that he had no choice but to plead guilty because his

trial lawyer had lost his file including an allegedly exculpatory tape and the

lawyer was therefore unable to effectively defend him Trial counsel who was the

states only witness on this issue was permitted to present testimony directly

contrary to the defendants-that the file was not lost-by telephone without the

defendants consent and indeed over his specific objections There is no doubt that

this is contrary to Florida Rule of Judicial Administration 2540(d)(1) See Brown

v State 101 So 3d 381 (Fla 1st DCA 2012) Cole v Cole 86 So 3d 1175 (Fla

5th DCA 2012) MS v Dept of Children amp Families 6 So 3d 102 (Fla 4th DCA

2009)

The majority bases affirmance upon the ground of harmless error I believe

that this basis for affirmance which was not raised by the state or the trial court at

any stage of the proceedings below or on appeal is incorrect2 The majority

primarily contends that the specific claim of ineffectiveness presented by the

2 We have been unable to discover a prior instance of reversal on the bases assigned by the majority after a hearing on the merits has already been conducted

8

defendant was conclusively negated-obviating the necessity of an evidentiary

hearing at all-by the colloquy at which the plea was tendered and accepted by the

defendant in which the following occurred

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

While it is true that generalized allegations of coercion and the like may

be negated by answers like these during the plea-taking process see Cartwright v

State 112 So 3d 582 (Fla 4th DCA 2013) this is emphatically not the case when

as here claims of specific instances of attorney incapacity or ineffectiveness are

alleged and demonstrated below See Hayes v State No 2D13-1682 (Fla 2d DCA

Sept 4 2013) (holding that general acknowledgements of satisfaction with counsel

do not conclusively refute claims of ineffective assistance of counsel based on a

failure to pursue specific defense) Jones v State 846 So 2d 1224 (Fla 2d DCA

2003) (same) see also Nelson v State 996 So 2d 950 (Fla 2d DCA 2008)

9

McKune v State 953 So 2d 746 (Fla 2d DCA 2007) In my judgment these

decisions rather than the ones cited by the court are controlling on this issue

The court also finds a basis for harmlessness on the claim that the challenged

testimony was merely cumulative Again this is not the case There was no

testimony whatsoever concerning the allegedly lost file and the attendant

circumstances except for the lawyers erroneously admitted telephonic testimony

which was in turn the only basis for the trial judges rejection of the defendants

position As it said

This Court finds that the July 24 2006 hearing testimony of trial counsel Raphael Ubieta completely refutes this claim of the defendant The defendant alleges that defense counsel lost his case file however the testimonial evidence clearly refutes this claim Throughout the hearing Mr Ubieta was asked more than once if he had misplaced the defendants case file each time Mr Ubieta unequivocally responded he had the file it was not lost and he was ready to go to trial if need be When Mr Ubieta was asked whether he was prepared to try the case Mr Ubieta responded in the affirmative This Court finds the hearing testimony of Mr Ubieta credible and compelling

Since the lawyers testimony on the critical issue in the case was directly

contrary to that of the defendant and was accepted by the trial court and-perhaps

most important-because I believe that we cannot fmd that the violation of the

rules was harmless see Brown 101 So 3d at 382 (holding that the trial courts

error in allowing telephonic testimony in violation Florida Rule of Judicial

Administration 2530 was not harmless absent any other evidence to support the

10

trial courts finding) I would therefore remand the cause for the conduct of a new

evidentiary hearing on the ineffective assistance issue See Brown 101 So 3d at

381 Col_e 86 So 3d at 1175 MS 6 So 3d at 102 I agree with the courts

disposition of the newly discovered evidence point

11

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

jar

3729 1272 70 0 1 From psseseprinrandpressaanpound

Date Ac oun Nudu 4 ExpressPackageService 042nii Pack042sesapserseas

NOTE serviceerderhaschungedPicaseselectearefully

MBeintildeossoa s

(

Name Phone e n

SmdqDekyNOT

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conglaquo a deg wcu

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I Address

03 17 Sir S e

a 27 smeroiyNDiankble

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8 a e able

city State ZIP $301 S Packaging 042nusdhseans

2 Y r 31Billing R rence FedampEnvelope FadhPak aFedh

Box Fedh Tube

0

S 3 To

rnommicro Sveswamprt egm 6 Special Handling and Delivery Signature Opuons

n-arae d (

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No a

D Signature may on or ps

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n ct am

re o

Address Use this

AAR S OcircF19cs the HOLD location address or forcontinuationof your shipping address

a -Ob15ct

- ~ a a a a

City State ZIP

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TotalPackages

EnisfedEx Anot karQadhcudk below

Recpient ThirdParty CreditCard

TotalWeight TotalDeclaredValuet o

ashCheck

() Easy new Peel-and-Stick airbill No pouch needed Apply airbill directly to your package See directions on back ggpf ==042042tEr$6miniaaianarlaquorsnwa

asetVu042PanH6M042copyNt2FedEx+PRINTEDINUSA SRF

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Subiect to additional Charges See FedEx ServiCe Guide at fedexcom for details All eerchandise sales final

Visit us at fedexcom Or call 1800GoFedEx

18004633339

November 1 2013 101628 PM

harmful error absent any other evidence to support the trial courts finding But

the most important reason the Trial Court erred in allowing the telephonic

testimony deals with section (d)(4) of the rule Confrontational Rights

During the course of Mr Ubietas testimony concerning the lost file he

committed perjury on several occasions emphatically stating that he never had

possession of a video tape which the defense planned to use as exculpatory

evidence during trial and because he was testifying over the telephone - The

Defense was unable to use Ubietas prior transcript testimony for impeachment

purposes where he had the same tape in his hand asking the judge at that particular

hearing to please allow him to play it for the court

KEY NOTE THERE IN LAYS THE PROBLEM WITH ALLOWING

TELEPHONIC TESTIMONY - IT IS IMPOSSIBLE TO HAND OVER

TANGIBLE IMPEACHMENT EVIDENCE TO A WITNESS THAT IS NOT

PRESENT IN THE COURT ROOM THIS WAS EXTREMELY HARMFUL

TO THE DEFENSE

Shortly after this hearing the Defendant wrote a letter to the Trial Court

along with transcript evidence of Mr Ubietas perjures testimony during that

hearing (R 277-299) amp Appellants Initial Brief-App8) in violation of Fl Statute

83702 Fl Statute 837021 asking the court to take the impeachment evidence

into consideration before rendering a ruling to no avail In the Trial Courts order

- 8 shy

Judge Perezs statement finding Mr Ubietas testimony to be credible was not

supported by the evidence that was at this point on the record

III

The District Court seems to have been confused with point II on Appellants brief

II THE LOWER COURTS RULING FINDING MR UBIETA CREDIBLE IS NOT SUPPORTED BY THE EVIDENCE

As it failed to address the issue being raised by the Appellant and erroneously

substituted point II of the lower Trial Case Rule 3850 motion in its place

II NEW LY DISCOVERED EVIDENCE SALGADOS TESTIMONY ABOUT AN INCIDENT IN DECEMBER 2002 IN WHICH SHE STATES THAT PRIOR TO THAT TIME (AND SUBSEQUENT TO THE PLEA IN THIS CASE) RIVERO HAD NEVER LAID A FINGER ON HER

As previously mentioned the second issue dealing with Newly Discovered

Evidence was never raised in Appellants briefs to the 3d DCA and the State

acknowledged this fact on Pg 13 of their Response Brief Given the credibility

issues raised by the Appellant on point II of this brief pertaining to Mr Ubietas

credibility makes this oversight by the District Court of Appeals a significant and

crucial mistake which clearly impaired the ability for a just and well informed

decision This may be an issue offigraverst impression as the Appellant has been unable

to find any case law alluding to a District court mistakenly substituting a

particularpoint on an appellate briefwith onefrom a Lower Court motion

CONCLUSION

WHEREFORE Petitioner asks that this Honorable Court would exercise

its jurisdiction and grant discretionary review in order to consider the merits of

Petitioners argument

Respectfull submitted

035 West 77th St et Apt - 315 Hialea Florida 33014

Cel Phon (786) 285-0590

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this briefwas mailed to NIKOLE HICIANO Assistant Attorney General Office ofAttorney General 444 Brickell Suite 650 Miami Florida 33131 this 10th day of October 2013

JOSE RIVERO

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief is submitted in Times New Roman 14shy

point font

JOSE RIVERO

- 10 shy

APPENDIX

Efjiacuterb 3)(stritt Court of 2(ppeal State of Florida July Term AD 2013

Opinion filed September 25 2013 Not final until disposition of timely filed motion for rehearing

No 3D07-2490 Lower Tribunal No 02-6845

Jose A Rivero Appellant

vs

The State of Florida Appellee

An Appeal from the Circuit Court for Miami-Dade County Jorge Perez Judge

Jose A Rivero in proper person

Pamela Jo Bondi Attorney General and Nikole Hiciano Assistant Attorney General for appellee

Before WELLS and ROTHENBERG JJ and SCHWARTZ Senior Judge

ROTHENBERG J

The defendant Jose Rivero appeals from the denial of his rule 3850 motion

for postconviction relief in which he claims that (1) he was pressured into

accepting the States plea offer because his lawyer had lost his case file and (2)

he had obtained newly discovered evidence that would have resulted in an acquittal

had he proceeded to trial Because the plea transcript unequivocally refutes the

defendants first claim and the evidence the defendant relies on is not newly

discovered evidence or evidence that would likely produce an acquittal the

defendants motion should have been summarily denied We therefore affirm the

trial courts order denying the defendant relief

The defendant seeks a reversal of the trial courts order denying his motion

for postconviction relief on the basis of a procedural error committed by the trial

court when it conducted an unnecessary evidentiary hearing which produced

further proof refuting the defendants claims Although it was error to allow the

defendants trial counsel to testify by telephone over the defendants objection at

the evidentiary hearing see Fla R Jud Admin 2530(d)(1) (permitting testimony

by telephone only if all parties consent) because no further proof was necessary

and the defendants allegations were unequivocally refuted without reliance on the

telephonically obtained testimony the error in this case was clearly harmless

Specifically the defendant was charged with burglary with an assault andor

a battery two counts of battery and criminal mischief and he was facing a

2

potential life sentence if convicted of burglary with an assault or battery The State

alleged that in violation of a domestic violence injunction stay-away order the

defendant drove to the victims home saw her kissing another man and when the

victim would not open the door the defendant kicked the door in fought with the

man he saw kissing the victim and slapped the victim The defendant does not

dispute that he kicked the door in and fought with the male occupant He only

disputes that he slapped the victim The plea offered by the State and accepted by

the defendant was a plea of guilty to the charges a withhold of adjudication six

months of community control followed by thirty months of probation with several

special conditions including a stay-away order from the victims and completion

of a domestic violence program

The relevant portions of the plea colloquy are as follows

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

3

Court Do you believe this plea is in your best interest

Defendant Yes

Court The Court finds a factual basis I find that you are alert and intelligent that you understand the nature and consequences of your plea and that you are represented by good and competent counsel which whom you say you are satisfied I find that you are entering into this plea freely and voluntarily I accept your plea of guilty

(emphasis added)

Thus the defendants claim that he was coerced or pressured to accept the

States very lenient plea offer which resulted in his immediate release from jail1

was unequivocally refuted by the record and the defendants first claim should

have been summarily denied _S_ee Cartwright v State 112 So 3d 582 584 (Fla

4th DCA 2013) In Cartwright the Fourth District recognized that

Under Florida law a defendants claim that his plea was the result of coercion by defense counsel may be conclusively refuted by the defendants responses during plea colloquy and the signed plea form Williams v State 919 So 2d 645 646 (Fla 4th DCA 2006) The record reflects that the court engaged in a thorough plea colloquy with Appellant in which Appellant represented that he understood the parameters of the plea that no one had threatened or coerced him into entering a plea that no one had promised him anything and that no

The defendant had been denied bail after a bond hearing was conducted by the trial court based on the defendants violation of a prior court order prohibiting the defendant from having any contact with the victim

4

1

one had misadvised him or made any misrepresentations to him Thus the record refutes Appellants claim that his plea was coerced

See also Alfred v State 71 So 3d 138 139 (Fla 4th DCA 2011) (A defendant is

bound by his sworn answers during a plea colloquy and cannot later disavow those

answers by asserting that he lied during the colloquy at counsels direction)

Davis v State 938 So 2d 555 557 (Fla 1st DCA 2006) (In the instant case the

appellant clearly states on record that he was satisfied with his attorneys services

Thus he cannot now assert that at the time of the pleas entry he had serious

doubts about his attorneys effectiveness) Rackley v State 571 So 2d 533 535

(Fla 1st DCA 1990) (affirming summary denial of the defendants rule 3850

claim of coercion and noting that on numerous occasions the court had rejected

similar claims in other cases alleging ineffective assistance of counsel or coercion

where oral or written statements made by the defendant at sentencing were to the

contrary and that Rackleys written plea contained statements that he had not been

coerced into entering his guilty plea and that he was satisfied with the services of

his attorney thus refuting his claim of coercion) Loconte v State 382 So 2d 26

26 (Fla 1st DCA 1979) (affirming summary denial of Locontes motion to set

aside his plea which he claimed was the result of coercion and promises where

there was a direct denial of coercion and promises by Loconte during his plea

colloquy)

5

Because the defendant in the instant case clearly stated under oath during his

plea colloquy that he was satisfied with the services of his attorney he was not

being pressured or coerced to accept the States offered plea and he was pleading

guilty because he was guilty and for no other reason he cannot now claim that his

plea was the product of coercion Thus the defendants claim of coercion should

have been summarily denied

Although the trial court erred in allowing the defendants trial counsel to

testify telephonically at the unnecessary evidentiary hearing over the defendants

objection this error was harmless beyond a reasonable doubt where trial counsels

testimony only provided additional evidence to refute the defendants claims See

Golden amp Cowan PA v Estate of Kosofsky 45 So 3d 986 987-88 (Fla 3d DCA

2010) (holding that the trial courts error in allowing telephonic testimony over the

appellants objection and in violation of rule 2530(d)(1) was harmless due to the

existence of other independent evidence which would have supported the trial

courts decision) SA v Dept of Children amp Family Servs 961 So 2d 1066

1067 (Fla 3d DCA 2007) (telephonic testimony permitted over mothers objection

in dependency hearing held to be harmless error because even if the telephonic

testimony was excluded there was other evidence supporting the trial courts

ruling) Quinones v Quinones 870 So 2d 108 109 (Fla 2d DCA 2003) (finding

6

no reversible error where the wife in a dissolution of marriage proceeding was

permitted over objection to testify telephonically)

We additionally reject the defendants second claim of newly discovered

evidence The newly discovered evidence which the defendant claims entitles

him to set aside his plea is the female victims later recantation of her prior sworn

testimony that the defendant slapped her after he kicked in the door of her house

This evidence was not only impeachable by the female victims prior sworn

testimony and statements to the police it would not have played any meaningful

role if the defendant had proceeded to trial The defendant admitted to kicking in

the door entering the house by force and getting into a physical fight with the

male victim These acts constitute a burglary with an assault andor a battery

Thus the defendant has failed to meet his burden to establish the prejudice prong

under Strickland v Washington 466 US 668 (1984)

Accordingly we affirm the trial courts order denying the defendants

motion for postconviction relief

Affirmed

WELLS J concurs

7

Case no 3D07-2490

Jose A Rivero v The State of Florida

SCHWARTZ Senior Judge (dissenting in part)

I disagree with the courts affirmance of the rejection of appellants Florida

Rule of Criminal Procedure 3850 claim of ineffective assistance of counsel which

was based upon the contention that he had no choice but to plead guilty because his

trial lawyer had lost his file including an allegedly exculpatory tape and the

lawyer was therefore unable to effectively defend him Trial counsel who was the

states only witness on this issue was permitted to present testimony directly

contrary to the defendants-that the file was not lost-by telephone without the

defendants consent and indeed over his specific objections There is no doubt that

this is contrary to Florida Rule of Judicial Administration 2540(d)(1) See Brown

v State 101 So 3d 381 (Fla 1st DCA 2012) Cole v Cole 86 So 3d 1175 (Fla

5th DCA 2012) MS v Dept of Children amp Families 6 So 3d 102 (Fla 4th DCA

2009)

The majority bases affirmance upon the ground of harmless error I believe

that this basis for affirmance which was not raised by the state or the trial court at

any stage of the proceedings below or on appeal is incorrect2 The majority

primarily contends that the specific claim of ineffectiveness presented by the

2 We have been unable to discover a prior instance of reversal on the bases assigned by the majority after a hearing on the merits has already been conducted

8

defendant was conclusively negated-obviating the necessity of an evidentiary

hearing at all-by the colloquy at which the plea was tendered and accepted by the

defendant in which the following occurred

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

While it is true that generalized allegations of coercion and the like may

be negated by answers like these during the plea-taking process see Cartwright v

State 112 So 3d 582 (Fla 4th DCA 2013) this is emphatically not the case when

as here claims of specific instances of attorney incapacity or ineffectiveness are

alleged and demonstrated below See Hayes v State No 2D13-1682 (Fla 2d DCA

Sept 4 2013) (holding that general acknowledgements of satisfaction with counsel

do not conclusively refute claims of ineffective assistance of counsel based on a

failure to pursue specific defense) Jones v State 846 So 2d 1224 (Fla 2d DCA

2003) (same) see also Nelson v State 996 So 2d 950 (Fla 2d DCA 2008)

9

McKune v State 953 So 2d 746 (Fla 2d DCA 2007) In my judgment these

decisions rather than the ones cited by the court are controlling on this issue

The court also finds a basis for harmlessness on the claim that the challenged

testimony was merely cumulative Again this is not the case There was no

testimony whatsoever concerning the allegedly lost file and the attendant

circumstances except for the lawyers erroneously admitted telephonic testimony

which was in turn the only basis for the trial judges rejection of the defendants

position As it said

This Court finds that the July 24 2006 hearing testimony of trial counsel Raphael Ubieta completely refutes this claim of the defendant The defendant alleges that defense counsel lost his case file however the testimonial evidence clearly refutes this claim Throughout the hearing Mr Ubieta was asked more than once if he had misplaced the defendants case file each time Mr Ubieta unequivocally responded he had the file it was not lost and he was ready to go to trial if need be When Mr Ubieta was asked whether he was prepared to try the case Mr Ubieta responded in the affirmative This Court finds the hearing testimony of Mr Ubieta credible and compelling

Since the lawyers testimony on the critical issue in the case was directly

contrary to that of the defendant and was accepted by the trial court and-perhaps

most important-because I believe that we cannot fmd that the violation of the

rules was harmless see Brown 101 So 3d at 382 (holding that the trial courts

error in allowing telephonic testimony in violation Florida Rule of Judicial

Administration 2530 was not harmless absent any other evidence to support the

10

trial courts finding) I would therefore remand the cause for the conduct of a new

evidentiary hearing on the ineffective assistance issue See Brown 101 So 3d at

381 Col_e 86 So 3d at 1175 MS 6 So 3d at 102 I agree with the courts

disposition of the newly discovered evidence point

11

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

jar

3729 1272 70 0 1 From psseseprinrandpressaanpound

Date Ac oun Nudu 4 ExpressPackageService 042nii Pack042sesapserseas

NOTE serviceerderhaschungedPicaseselectearefully

MBeintildeossoa s

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Name Phone e n

SmdqDekyNOT

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conglaquo a deg wcu

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I Address

03 17 Sir S e

a 27 smeroiyNDiankble

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8 a e able

city State ZIP $301 S Packaging 042nusdhseans

2 Y r 31Billing R rence FedampEnvelope FadhPak aFedh

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rnommicro Sveswamprt egm 6 Special Handling and Delivery Signature Opuons

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_es 500 suam huvAt scra we cennadeilver to P0 boxes or PD coden rszliglultadloom

amp ID turday

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a -Ob15ct

- ~ a a a a

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TotalPackages

EnisfedEx Anot karQadhcudk below

Recpient ThirdParty CreditCard

TotalWeight TotalDeclaredValuet o

ashCheck

() Easy new Peel-and-Stick airbill No pouch needed Apply airbill directly to your package See directions on back ggpf ==042042tEr$6miniaaianarlaquorsnwa

asetVu042PanH6M042copyNt2FedEx+PRINTEDINUSA SRF

bs

Subiect to additional Charges See FedEx ServiCe Guide at fedexcom for details All eerchandise sales final

Visit us at fedexcom Or call 1800GoFedEx

18004633339

November 1 2013 101628 PM

Judge Perezs statement finding Mr Ubietas testimony to be credible was not

supported by the evidence that was at this point on the record

III

The District Court seems to have been confused with point II on Appellants brief

II THE LOWER COURTS RULING FINDING MR UBIETA CREDIBLE IS NOT SUPPORTED BY THE EVIDENCE

As it failed to address the issue being raised by the Appellant and erroneously

substituted point II of the lower Trial Case Rule 3850 motion in its place

II NEW LY DISCOVERED EVIDENCE SALGADOS TESTIMONY ABOUT AN INCIDENT IN DECEMBER 2002 IN WHICH SHE STATES THAT PRIOR TO THAT TIME (AND SUBSEQUENT TO THE PLEA IN THIS CASE) RIVERO HAD NEVER LAID A FINGER ON HER

As previously mentioned the second issue dealing with Newly Discovered

Evidence was never raised in Appellants briefs to the 3d DCA and the State

acknowledged this fact on Pg 13 of their Response Brief Given the credibility

issues raised by the Appellant on point II of this brief pertaining to Mr Ubietas

credibility makes this oversight by the District Court of Appeals a significant and

crucial mistake which clearly impaired the ability for a just and well informed

decision This may be an issue offigraverst impression as the Appellant has been unable

to find any case law alluding to a District court mistakenly substituting a

particularpoint on an appellate briefwith onefrom a Lower Court motion

CONCLUSION

WHEREFORE Petitioner asks that this Honorable Court would exercise

its jurisdiction and grant discretionary review in order to consider the merits of

Petitioners argument

Respectfull submitted

035 West 77th St et Apt - 315 Hialea Florida 33014

Cel Phon (786) 285-0590

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this briefwas mailed to NIKOLE HICIANO Assistant Attorney General Office ofAttorney General 444 Brickell Suite 650 Miami Florida 33131 this 10th day of October 2013

JOSE RIVERO

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief is submitted in Times New Roman 14shy

point font

JOSE RIVERO

- 10 shy

APPENDIX

Efjiacuterb 3)(stritt Court of 2(ppeal State of Florida July Term AD 2013

Opinion filed September 25 2013 Not final until disposition of timely filed motion for rehearing

No 3D07-2490 Lower Tribunal No 02-6845

Jose A Rivero Appellant

vs

The State of Florida Appellee

An Appeal from the Circuit Court for Miami-Dade County Jorge Perez Judge

Jose A Rivero in proper person

Pamela Jo Bondi Attorney General and Nikole Hiciano Assistant Attorney General for appellee

Before WELLS and ROTHENBERG JJ and SCHWARTZ Senior Judge

ROTHENBERG J

The defendant Jose Rivero appeals from the denial of his rule 3850 motion

for postconviction relief in which he claims that (1) he was pressured into

accepting the States plea offer because his lawyer had lost his case file and (2)

he had obtained newly discovered evidence that would have resulted in an acquittal

had he proceeded to trial Because the plea transcript unequivocally refutes the

defendants first claim and the evidence the defendant relies on is not newly

discovered evidence or evidence that would likely produce an acquittal the

defendants motion should have been summarily denied We therefore affirm the

trial courts order denying the defendant relief

The defendant seeks a reversal of the trial courts order denying his motion

for postconviction relief on the basis of a procedural error committed by the trial

court when it conducted an unnecessary evidentiary hearing which produced

further proof refuting the defendants claims Although it was error to allow the

defendants trial counsel to testify by telephone over the defendants objection at

the evidentiary hearing see Fla R Jud Admin 2530(d)(1) (permitting testimony

by telephone only if all parties consent) because no further proof was necessary

and the defendants allegations were unequivocally refuted without reliance on the

telephonically obtained testimony the error in this case was clearly harmless

Specifically the defendant was charged with burglary with an assault andor

a battery two counts of battery and criminal mischief and he was facing a

2

potential life sentence if convicted of burglary with an assault or battery The State

alleged that in violation of a domestic violence injunction stay-away order the

defendant drove to the victims home saw her kissing another man and when the

victim would not open the door the defendant kicked the door in fought with the

man he saw kissing the victim and slapped the victim The defendant does not

dispute that he kicked the door in and fought with the male occupant He only

disputes that he slapped the victim The plea offered by the State and accepted by

the defendant was a plea of guilty to the charges a withhold of adjudication six

months of community control followed by thirty months of probation with several

special conditions including a stay-away order from the victims and completion

of a domestic violence program

The relevant portions of the plea colloquy are as follows

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

3

Court Do you believe this plea is in your best interest

Defendant Yes

Court The Court finds a factual basis I find that you are alert and intelligent that you understand the nature and consequences of your plea and that you are represented by good and competent counsel which whom you say you are satisfied I find that you are entering into this plea freely and voluntarily I accept your plea of guilty

(emphasis added)

Thus the defendants claim that he was coerced or pressured to accept the

States very lenient plea offer which resulted in his immediate release from jail1

was unequivocally refuted by the record and the defendants first claim should

have been summarily denied _S_ee Cartwright v State 112 So 3d 582 584 (Fla

4th DCA 2013) In Cartwright the Fourth District recognized that

Under Florida law a defendants claim that his plea was the result of coercion by defense counsel may be conclusively refuted by the defendants responses during plea colloquy and the signed plea form Williams v State 919 So 2d 645 646 (Fla 4th DCA 2006) The record reflects that the court engaged in a thorough plea colloquy with Appellant in which Appellant represented that he understood the parameters of the plea that no one had threatened or coerced him into entering a plea that no one had promised him anything and that no

The defendant had been denied bail after a bond hearing was conducted by the trial court based on the defendants violation of a prior court order prohibiting the defendant from having any contact with the victim

4

1

one had misadvised him or made any misrepresentations to him Thus the record refutes Appellants claim that his plea was coerced

See also Alfred v State 71 So 3d 138 139 (Fla 4th DCA 2011) (A defendant is

bound by his sworn answers during a plea colloquy and cannot later disavow those

answers by asserting that he lied during the colloquy at counsels direction)

Davis v State 938 So 2d 555 557 (Fla 1st DCA 2006) (In the instant case the

appellant clearly states on record that he was satisfied with his attorneys services

Thus he cannot now assert that at the time of the pleas entry he had serious

doubts about his attorneys effectiveness) Rackley v State 571 So 2d 533 535

(Fla 1st DCA 1990) (affirming summary denial of the defendants rule 3850

claim of coercion and noting that on numerous occasions the court had rejected

similar claims in other cases alleging ineffective assistance of counsel or coercion

where oral or written statements made by the defendant at sentencing were to the

contrary and that Rackleys written plea contained statements that he had not been

coerced into entering his guilty plea and that he was satisfied with the services of

his attorney thus refuting his claim of coercion) Loconte v State 382 So 2d 26

26 (Fla 1st DCA 1979) (affirming summary denial of Locontes motion to set

aside his plea which he claimed was the result of coercion and promises where

there was a direct denial of coercion and promises by Loconte during his plea

colloquy)

5

Because the defendant in the instant case clearly stated under oath during his

plea colloquy that he was satisfied with the services of his attorney he was not

being pressured or coerced to accept the States offered plea and he was pleading

guilty because he was guilty and for no other reason he cannot now claim that his

plea was the product of coercion Thus the defendants claim of coercion should

have been summarily denied

Although the trial court erred in allowing the defendants trial counsel to

testify telephonically at the unnecessary evidentiary hearing over the defendants

objection this error was harmless beyond a reasonable doubt where trial counsels

testimony only provided additional evidence to refute the defendants claims See

Golden amp Cowan PA v Estate of Kosofsky 45 So 3d 986 987-88 (Fla 3d DCA

2010) (holding that the trial courts error in allowing telephonic testimony over the

appellants objection and in violation of rule 2530(d)(1) was harmless due to the

existence of other independent evidence which would have supported the trial

courts decision) SA v Dept of Children amp Family Servs 961 So 2d 1066

1067 (Fla 3d DCA 2007) (telephonic testimony permitted over mothers objection

in dependency hearing held to be harmless error because even if the telephonic

testimony was excluded there was other evidence supporting the trial courts

ruling) Quinones v Quinones 870 So 2d 108 109 (Fla 2d DCA 2003) (finding

6

no reversible error where the wife in a dissolution of marriage proceeding was

permitted over objection to testify telephonically)

We additionally reject the defendants second claim of newly discovered

evidence The newly discovered evidence which the defendant claims entitles

him to set aside his plea is the female victims later recantation of her prior sworn

testimony that the defendant slapped her after he kicked in the door of her house

This evidence was not only impeachable by the female victims prior sworn

testimony and statements to the police it would not have played any meaningful

role if the defendant had proceeded to trial The defendant admitted to kicking in

the door entering the house by force and getting into a physical fight with the

male victim These acts constitute a burglary with an assault andor a battery

Thus the defendant has failed to meet his burden to establish the prejudice prong

under Strickland v Washington 466 US 668 (1984)

Accordingly we affirm the trial courts order denying the defendants

motion for postconviction relief

Affirmed

WELLS J concurs

7

Case no 3D07-2490

Jose A Rivero v The State of Florida

SCHWARTZ Senior Judge (dissenting in part)

I disagree with the courts affirmance of the rejection of appellants Florida

Rule of Criminal Procedure 3850 claim of ineffective assistance of counsel which

was based upon the contention that he had no choice but to plead guilty because his

trial lawyer had lost his file including an allegedly exculpatory tape and the

lawyer was therefore unable to effectively defend him Trial counsel who was the

states only witness on this issue was permitted to present testimony directly

contrary to the defendants-that the file was not lost-by telephone without the

defendants consent and indeed over his specific objections There is no doubt that

this is contrary to Florida Rule of Judicial Administration 2540(d)(1) See Brown

v State 101 So 3d 381 (Fla 1st DCA 2012) Cole v Cole 86 So 3d 1175 (Fla

5th DCA 2012) MS v Dept of Children amp Families 6 So 3d 102 (Fla 4th DCA

2009)

The majority bases affirmance upon the ground of harmless error I believe

that this basis for affirmance which was not raised by the state or the trial court at

any stage of the proceedings below or on appeal is incorrect2 The majority

primarily contends that the specific claim of ineffectiveness presented by the

2 We have been unable to discover a prior instance of reversal on the bases assigned by the majority after a hearing on the merits has already been conducted

8

defendant was conclusively negated-obviating the necessity of an evidentiary

hearing at all-by the colloquy at which the plea was tendered and accepted by the

defendant in which the following occurred

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

While it is true that generalized allegations of coercion and the like may

be negated by answers like these during the plea-taking process see Cartwright v

State 112 So 3d 582 (Fla 4th DCA 2013) this is emphatically not the case when

as here claims of specific instances of attorney incapacity or ineffectiveness are

alleged and demonstrated below See Hayes v State No 2D13-1682 (Fla 2d DCA

Sept 4 2013) (holding that general acknowledgements of satisfaction with counsel

do not conclusively refute claims of ineffective assistance of counsel based on a

failure to pursue specific defense) Jones v State 846 So 2d 1224 (Fla 2d DCA

2003) (same) see also Nelson v State 996 So 2d 950 (Fla 2d DCA 2008)

9

McKune v State 953 So 2d 746 (Fla 2d DCA 2007) In my judgment these

decisions rather than the ones cited by the court are controlling on this issue

The court also finds a basis for harmlessness on the claim that the challenged

testimony was merely cumulative Again this is not the case There was no

testimony whatsoever concerning the allegedly lost file and the attendant

circumstances except for the lawyers erroneously admitted telephonic testimony

which was in turn the only basis for the trial judges rejection of the defendants

position As it said

This Court finds that the July 24 2006 hearing testimony of trial counsel Raphael Ubieta completely refutes this claim of the defendant The defendant alleges that defense counsel lost his case file however the testimonial evidence clearly refutes this claim Throughout the hearing Mr Ubieta was asked more than once if he had misplaced the defendants case file each time Mr Ubieta unequivocally responded he had the file it was not lost and he was ready to go to trial if need be When Mr Ubieta was asked whether he was prepared to try the case Mr Ubieta responded in the affirmative This Court finds the hearing testimony of Mr Ubieta credible and compelling

Since the lawyers testimony on the critical issue in the case was directly

contrary to that of the defendant and was accepted by the trial court and-perhaps

most important-because I believe that we cannot fmd that the violation of the

rules was harmless see Brown 101 So 3d at 382 (holding that the trial courts

error in allowing telephonic testimony in violation Florida Rule of Judicial

Administration 2530 was not harmless absent any other evidence to support the

10

trial courts finding) I would therefore remand the cause for the conduct of a new

evidentiary hearing on the ineffective assistance issue See Brown 101 So 3d at

381 Col_e 86 So 3d at 1175 MS 6 So 3d at 102 I agree with the courts

disposition of the newly discovered evidence point

11

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

jar

3729 1272 70 0 1 From psseseprinrandpressaanpound

Date Ac oun Nudu 4 ExpressPackageService 042nii Pack042sesapserseas

NOTE serviceerderhaschungedPicaseselectearefully

MBeintildeossoa s

(

Name Phone e n

SmdqDekyNOT

D E

conglaquo a deg wcu

oskynscu

o

I Address

03 17 Sir S e

a 27 smeroiyNDiankble

a Saeeday0ehmy

8 a e able

city State ZIP $301 S Packaging 042nusdhseans

2 Y r 31Billing R rence FedampEnvelope FadhPak aFedh

Box Fedh Tube

0

S 3 To

rnommicro Sveswamprt egm 6 Special Handling and Delivery Signature Opuons

n-arae d (

Company

_es 500 suam huvAt scra we cennadeilver to P0 boxes or PD coden rszliglultadloom

amp ID turday

No Signa re R red anare ord=hlaquoy

No a

D Signature may on or ps

e

n ct am

re o

Address Use this

AAR S OcircF19cs the HOLD location address or forcontinuationof your shipping address

a -Ob15ct

- ~ a a a a

City State ZIP

e splusmn

TotalPackages

EnisfedEx Anot karQadhcudk below

Recpient ThirdParty CreditCard

TotalWeight TotalDeclaredValuet o

ashCheck

() Easy new Peel-and-Stick airbill No pouch needed Apply airbill directly to your package See directions on back ggpf ==042042tEr$6miniaaianarlaquorsnwa

asetVu042PanH6M042copyNt2FedEx+PRINTEDINUSA SRF

bs

Subiect to additional Charges See FedEx ServiCe Guide at fedexcom for details All eerchandise sales final

Visit us at fedexcom Or call 1800GoFedEx

18004633339

November 1 2013 101628 PM

CONCLUSION

WHEREFORE Petitioner asks that this Honorable Court would exercise

its jurisdiction and grant discretionary review in order to consider the merits of

Petitioners argument

Respectfull submitted

035 West 77th St et Apt - 315 Hialea Florida 33014

Cel Phon (786) 285-0590

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this briefwas mailed to NIKOLE HICIANO Assistant Attorney General Office ofAttorney General 444 Brickell Suite 650 Miami Florida 33131 this 10th day of October 2013

JOSE RIVERO

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief is submitted in Times New Roman 14shy

point font

JOSE RIVERO

- 10 shy

APPENDIX

Efjiacuterb 3)(stritt Court of 2(ppeal State of Florida July Term AD 2013

Opinion filed September 25 2013 Not final until disposition of timely filed motion for rehearing

No 3D07-2490 Lower Tribunal No 02-6845

Jose A Rivero Appellant

vs

The State of Florida Appellee

An Appeal from the Circuit Court for Miami-Dade County Jorge Perez Judge

Jose A Rivero in proper person

Pamela Jo Bondi Attorney General and Nikole Hiciano Assistant Attorney General for appellee

Before WELLS and ROTHENBERG JJ and SCHWARTZ Senior Judge

ROTHENBERG J

The defendant Jose Rivero appeals from the denial of his rule 3850 motion

for postconviction relief in which he claims that (1) he was pressured into

accepting the States plea offer because his lawyer had lost his case file and (2)

he had obtained newly discovered evidence that would have resulted in an acquittal

had he proceeded to trial Because the plea transcript unequivocally refutes the

defendants first claim and the evidence the defendant relies on is not newly

discovered evidence or evidence that would likely produce an acquittal the

defendants motion should have been summarily denied We therefore affirm the

trial courts order denying the defendant relief

The defendant seeks a reversal of the trial courts order denying his motion

for postconviction relief on the basis of a procedural error committed by the trial

court when it conducted an unnecessary evidentiary hearing which produced

further proof refuting the defendants claims Although it was error to allow the

defendants trial counsel to testify by telephone over the defendants objection at

the evidentiary hearing see Fla R Jud Admin 2530(d)(1) (permitting testimony

by telephone only if all parties consent) because no further proof was necessary

and the defendants allegations were unequivocally refuted without reliance on the

telephonically obtained testimony the error in this case was clearly harmless

Specifically the defendant was charged with burglary with an assault andor

a battery two counts of battery and criminal mischief and he was facing a

2

potential life sentence if convicted of burglary with an assault or battery The State

alleged that in violation of a domestic violence injunction stay-away order the

defendant drove to the victims home saw her kissing another man and when the

victim would not open the door the defendant kicked the door in fought with the

man he saw kissing the victim and slapped the victim The defendant does not

dispute that he kicked the door in and fought with the male occupant He only

disputes that he slapped the victim The plea offered by the State and accepted by

the defendant was a plea of guilty to the charges a withhold of adjudication six

months of community control followed by thirty months of probation with several

special conditions including a stay-away order from the victims and completion

of a domestic violence program

The relevant portions of the plea colloquy are as follows

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

3

Court Do you believe this plea is in your best interest

Defendant Yes

Court The Court finds a factual basis I find that you are alert and intelligent that you understand the nature and consequences of your plea and that you are represented by good and competent counsel which whom you say you are satisfied I find that you are entering into this plea freely and voluntarily I accept your plea of guilty

(emphasis added)

Thus the defendants claim that he was coerced or pressured to accept the

States very lenient plea offer which resulted in his immediate release from jail1

was unequivocally refuted by the record and the defendants first claim should

have been summarily denied _S_ee Cartwright v State 112 So 3d 582 584 (Fla

4th DCA 2013) In Cartwright the Fourth District recognized that

Under Florida law a defendants claim that his plea was the result of coercion by defense counsel may be conclusively refuted by the defendants responses during plea colloquy and the signed plea form Williams v State 919 So 2d 645 646 (Fla 4th DCA 2006) The record reflects that the court engaged in a thorough plea colloquy with Appellant in which Appellant represented that he understood the parameters of the plea that no one had threatened or coerced him into entering a plea that no one had promised him anything and that no

The defendant had been denied bail after a bond hearing was conducted by the trial court based on the defendants violation of a prior court order prohibiting the defendant from having any contact with the victim

4

1

one had misadvised him or made any misrepresentations to him Thus the record refutes Appellants claim that his plea was coerced

See also Alfred v State 71 So 3d 138 139 (Fla 4th DCA 2011) (A defendant is

bound by his sworn answers during a plea colloquy and cannot later disavow those

answers by asserting that he lied during the colloquy at counsels direction)

Davis v State 938 So 2d 555 557 (Fla 1st DCA 2006) (In the instant case the

appellant clearly states on record that he was satisfied with his attorneys services

Thus he cannot now assert that at the time of the pleas entry he had serious

doubts about his attorneys effectiveness) Rackley v State 571 So 2d 533 535

(Fla 1st DCA 1990) (affirming summary denial of the defendants rule 3850

claim of coercion and noting that on numerous occasions the court had rejected

similar claims in other cases alleging ineffective assistance of counsel or coercion

where oral or written statements made by the defendant at sentencing were to the

contrary and that Rackleys written plea contained statements that he had not been

coerced into entering his guilty plea and that he was satisfied with the services of

his attorney thus refuting his claim of coercion) Loconte v State 382 So 2d 26

26 (Fla 1st DCA 1979) (affirming summary denial of Locontes motion to set

aside his plea which he claimed was the result of coercion and promises where

there was a direct denial of coercion and promises by Loconte during his plea

colloquy)

5

Because the defendant in the instant case clearly stated under oath during his

plea colloquy that he was satisfied with the services of his attorney he was not

being pressured or coerced to accept the States offered plea and he was pleading

guilty because he was guilty and for no other reason he cannot now claim that his

plea was the product of coercion Thus the defendants claim of coercion should

have been summarily denied

Although the trial court erred in allowing the defendants trial counsel to

testify telephonically at the unnecessary evidentiary hearing over the defendants

objection this error was harmless beyond a reasonable doubt where trial counsels

testimony only provided additional evidence to refute the defendants claims See

Golden amp Cowan PA v Estate of Kosofsky 45 So 3d 986 987-88 (Fla 3d DCA

2010) (holding that the trial courts error in allowing telephonic testimony over the

appellants objection and in violation of rule 2530(d)(1) was harmless due to the

existence of other independent evidence which would have supported the trial

courts decision) SA v Dept of Children amp Family Servs 961 So 2d 1066

1067 (Fla 3d DCA 2007) (telephonic testimony permitted over mothers objection

in dependency hearing held to be harmless error because even if the telephonic

testimony was excluded there was other evidence supporting the trial courts

ruling) Quinones v Quinones 870 So 2d 108 109 (Fla 2d DCA 2003) (finding

6

no reversible error where the wife in a dissolution of marriage proceeding was

permitted over objection to testify telephonically)

We additionally reject the defendants second claim of newly discovered

evidence The newly discovered evidence which the defendant claims entitles

him to set aside his plea is the female victims later recantation of her prior sworn

testimony that the defendant slapped her after he kicked in the door of her house

This evidence was not only impeachable by the female victims prior sworn

testimony and statements to the police it would not have played any meaningful

role if the defendant had proceeded to trial The defendant admitted to kicking in

the door entering the house by force and getting into a physical fight with the

male victim These acts constitute a burglary with an assault andor a battery

Thus the defendant has failed to meet his burden to establish the prejudice prong

under Strickland v Washington 466 US 668 (1984)

Accordingly we affirm the trial courts order denying the defendants

motion for postconviction relief

Affirmed

WELLS J concurs

7

Case no 3D07-2490

Jose A Rivero v The State of Florida

SCHWARTZ Senior Judge (dissenting in part)

I disagree with the courts affirmance of the rejection of appellants Florida

Rule of Criminal Procedure 3850 claim of ineffective assistance of counsel which

was based upon the contention that he had no choice but to plead guilty because his

trial lawyer had lost his file including an allegedly exculpatory tape and the

lawyer was therefore unable to effectively defend him Trial counsel who was the

states only witness on this issue was permitted to present testimony directly

contrary to the defendants-that the file was not lost-by telephone without the

defendants consent and indeed over his specific objections There is no doubt that

this is contrary to Florida Rule of Judicial Administration 2540(d)(1) See Brown

v State 101 So 3d 381 (Fla 1st DCA 2012) Cole v Cole 86 So 3d 1175 (Fla

5th DCA 2012) MS v Dept of Children amp Families 6 So 3d 102 (Fla 4th DCA

2009)

The majority bases affirmance upon the ground of harmless error I believe

that this basis for affirmance which was not raised by the state or the trial court at

any stage of the proceedings below or on appeal is incorrect2 The majority

primarily contends that the specific claim of ineffectiveness presented by the

2 We have been unable to discover a prior instance of reversal on the bases assigned by the majority after a hearing on the merits has already been conducted

8

defendant was conclusively negated-obviating the necessity of an evidentiary

hearing at all-by the colloquy at which the plea was tendered and accepted by the

defendant in which the following occurred

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

While it is true that generalized allegations of coercion and the like may

be negated by answers like these during the plea-taking process see Cartwright v

State 112 So 3d 582 (Fla 4th DCA 2013) this is emphatically not the case when

as here claims of specific instances of attorney incapacity or ineffectiveness are

alleged and demonstrated below See Hayes v State No 2D13-1682 (Fla 2d DCA

Sept 4 2013) (holding that general acknowledgements of satisfaction with counsel

do not conclusively refute claims of ineffective assistance of counsel based on a

failure to pursue specific defense) Jones v State 846 So 2d 1224 (Fla 2d DCA

2003) (same) see also Nelson v State 996 So 2d 950 (Fla 2d DCA 2008)

9

McKune v State 953 So 2d 746 (Fla 2d DCA 2007) In my judgment these

decisions rather than the ones cited by the court are controlling on this issue

The court also finds a basis for harmlessness on the claim that the challenged

testimony was merely cumulative Again this is not the case There was no

testimony whatsoever concerning the allegedly lost file and the attendant

circumstances except for the lawyers erroneously admitted telephonic testimony

which was in turn the only basis for the trial judges rejection of the defendants

position As it said

This Court finds that the July 24 2006 hearing testimony of trial counsel Raphael Ubieta completely refutes this claim of the defendant The defendant alleges that defense counsel lost his case file however the testimonial evidence clearly refutes this claim Throughout the hearing Mr Ubieta was asked more than once if he had misplaced the defendants case file each time Mr Ubieta unequivocally responded he had the file it was not lost and he was ready to go to trial if need be When Mr Ubieta was asked whether he was prepared to try the case Mr Ubieta responded in the affirmative This Court finds the hearing testimony of Mr Ubieta credible and compelling

Since the lawyers testimony on the critical issue in the case was directly

contrary to that of the defendant and was accepted by the trial court and-perhaps

most important-because I believe that we cannot fmd that the violation of the

rules was harmless see Brown 101 So 3d at 382 (holding that the trial courts

error in allowing telephonic testimony in violation Florida Rule of Judicial

Administration 2530 was not harmless absent any other evidence to support the

10

trial courts finding) I would therefore remand the cause for the conduct of a new

evidentiary hearing on the ineffective assistance issue See Brown 101 So 3d at

381 Col_e 86 So 3d at 1175 MS 6 So 3d at 102 I agree with the courts

disposition of the newly discovered evidence point

11

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

jar

3729 1272 70 0 1 From psseseprinrandpressaanpound

Date Ac oun Nudu 4 ExpressPackageService 042nii Pack042sesapserseas

NOTE serviceerderhaschungedPicaseselectearefully

MBeintildeossoa s

(

Name Phone e n

SmdqDekyNOT

D E

conglaquo a deg wcu

oskynscu

o

I Address

03 17 Sir S e

a 27 smeroiyNDiankble

a Saeeday0ehmy

8 a e able

city State ZIP $301 S Packaging 042nusdhseans

2 Y r 31Billing R rence FedampEnvelope FadhPak aFedh

Box Fedh Tube

0

S 3 To

rnommicro Sveswamprt egm 6 Special Handling and Delivery Signature Opuons

n-arae d (

Company

_es 500 suam huvAt scra we cennadeilver to P0 boxes or PD coden rszliglultadloom

amp ID turday

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Address Use this

AAR S OcircF19cs the HOLD location address or forcontinuationof your shipping address

a -Ob15ct

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City State ZIP

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TotalPackages

EnisfedEx Anot karQadhcudk below

Recpient ThirdParty CreditCard

TotalWeight TotalDeclaredValuet o

ashCheck

() Easy new Peel-and-Stick airbill No pouch needed Apply airbill directly to your package See directions on back ggpf ==042042tEr$6miniaaianarlaquorsnwa

asetVu042PanH6M042copyNt2FedEx+PRINTEDINUSA SRF

bs

Subiect to additional Charges See FedEx ServiCe Guide at fedexcom for details All eerchandise sales final

Visit us at fedexcom Or call 1800GoFedEx

18004633339

November 1 2013 101628 PM

APPENDIX

Efjiacuterb 3)(stritt Court of 2(ppeal State of Florida July Term AD 2013

Opinion filed September 25 2013 Not final until disposition of timely filed motion for rehearing

No 3D07-2490 Lower Tribunal No 02-6845

Jose A Rivero Appellant

vs

The State of Florida Appellee

An Appeal from the Circuit Court for Miami-Dade County Jorge Perez Judge

Jose A Rivero in proper person

Pamela Jo Bondi Attorney General and Nikole Hiciano Assistant Attorney General for appellee

Before WELLS and ROTHENBERG JJ and SCHWARTZ Senior Judge

ROTHENBERG J

The defendant Jose Rivero appeals from the denial of his rule 3850 motion

for postconviction relief in which he claims that (1) he was pressured into

accepting the States plea offer because his lawyer had lost his case file and (2)

he had obtained newly discovered evidence that would have resulted in an acquittal

had he proceeded to trial Because the plea transcript unequivocally refutes the

defendants first claim and the evidence the defendant relies on is not newly

discovered evidence or evidence that would likely produce an acquittal the

defendants motion should have been summarily denied We therefore affirm the

trial courts order denying the defendant relief

The defendant seeks a reversal of the trial courts order denying his motion

for postconviction relief on the basis of a procedural error committed by the trial

court when it conducted an unnecessary evidentiary hearing which produced

further proof refuting the defendants claims Although it was error to allow the

defendants trial counsel to testify by telephone over the defendants objection at

the evidentiary hearing see Fla R Jud Admin 2530(d)(1) (permitting testimony

by telephone only if all parties consent) because no further proof was necessary

and the defendants allegations were unequivocally refuted without reliance on the

telephonically obtained testimony the error in this case was clearly harmless

Specifically the defendant was charged with burglary with an assault andor

a battery two counts of battery and criminal mischief and he was facing a

2

potential life sentence if convicted of burglary with an assault or battery The State

alleged that in violation of a domestic violence injunction stay-away order the

defendant drove to the victims home saw her kissing another man and when the

victim would not open the door the defendant kicked the door in fought with the

man he saw kissing the victim and slapped the victim The defendant does not

dispute that he kicked the door in and fought with the male occupant He only

disputes that he slapped the victim The plea offered by the State and accepted by

the defendant was a plea of guilty to the charges a withhold of adjudication six

months of community control followed by thirty months of probation with several

special conditions including a stay-away order from the victims and completion

of a domestic violence program

The relevant portions of the plea colloquy are as follows

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

3

Court Do you believe this plea is in your best interest

Defendant Yes

Court The Court finds a factual basis I find that you are alert and intelligent that you understand the nature and consequences of your plea and that you are represented by good and competent counsel which whom you say you are satisfied I find that you are entering into this plea freely and voluntarily I accept your plea of guilty

(emphasis added)

Thus the defendants claim that he was coerced or pressured to accept the

States very lenient plea offer which resulted in his immediate release from jail1

was unequivocally refuted by the record and the defendants first claim should

have been summarily denied _S_ee Cartwright v State 112 So 3d 582 584 (Fla

4th DCA 2013) In Cartwright the Fourth District recognized that

Under Florida law a defendants claim that his plea was the result of coercion by defense counsel may be conclusively refuted by the defendants responses during plea colloquy and the signed plea form Williams v State 919 So 2d 645 646 (Fla 4th DCA 2006) The record reflects that the court engaged in a thorough plea colloquy with Appellant in which Appellant represented that he understood the parameters of the plea that no one had threatened or coerced him into entering a plea that no one had promised him anything and that no

The defendant had been denied bail after a bond hearing was conducted by the trial court based on the defendants violation of a prior court order prohibiting the defendant from having any contact with the victim

4

1

one had misadvised him or made any misrepresentations to him Thus the record refutes Appellants claim that his plea was coerced

See also Alfred v State 71 So 3d 138 139 (Fla 4th DCA 2011) (A defendant is

bound by his sworn answers during a plea colloquy and cannot later disavow those

answers by asserting that he lied during the colloquy at counsels direction)

Davis v State 938 So 2d 555 557 (Fla 1st DCA 2006) (In the instant case the

appellant clearly states on record that he was satisfied with his attorneys services

Thus he cannot now assert that at the time of the pleas entry he had serious

doubts about his attorneys effectiveness) Rackley v State 571 So 2d 533 535

(Fla 1st DCA 1990) (affirming summary denial of the defendants rule 3850

claim of coercion and noting that on numerous occasions the court had rejected

similar claims in other cases alleging ineffective assistance of counsel or coercion

where oral or written statements made by the defendant at sentencing were to the

contrary and that Rackleys written plea contained statements that he had not been

coerced into entering his guilty plea and that he was satisfied with the services of

his attorney thus refuting his claim of coercion) Loconte v State 382 So 2d 26

26 (Fla 1st DCA 1979) (affirming summary denial of Locontes motion to set

aside his plea which he claimed was the result of coercion and promises where

there was a direct denial of coercion and promises by Loconte during his plea

colloquy)

5

Because the defendant in the instant case clearly stated under oath during his

plea colloquy that he was satisfied with the services of his attorney he was not

being pressured or coerced to accept the States offered plea and he was pleading

guilty because he was guilty and for no other reason he cannot now claim that his

plea was the product of coercion Thus the defendants claim of coercion should

have been summarily denied

Although the trial court erred in allowing the defendants trial counsel to

testify telephonically at the unnecessary evidentiary hearing over the defendants

objection this error was harmless beyond a reasonable doubt where trial counsels

testimony only provided additional evidence to refute the defendants claims See

Golden amp Cowan PA v Estate of Kosofsky 45 So 3d 986 987-88 (Fla 3d DCA

2010) (holding that the trial courts error in allowing telephonic testimony over the

appellants objection and in violation of rule 2530(d)(1) was harmless due to the

existence of other independent evidence which would have supported the trial

courts decision) SA v Dept of Children amp Family Servs 961 So 2d 1066

1067 (Fla 3d DCA 2007) (telephonic testimony permitted over mothers objection

in dependency hearing held to be harmless error because even if the telephonic

testimony was excluded there was other evidence supporting the trial courts

ruling) Quinones v Quinones 870 So 2d 108 109 (Fla 2d DCA 2003) (finding

6

no reversible error where the wife in a dissolution of marriage proceeding was

permitted over objection to testify telephonically)

We additionally reject the defendants second claim of newly discovered

evidence The newly discovered evidence which the defendant claims entitles

him to set aside his plea is the female victims later recantation of her prior sworn

testimony that the defendant slapped her after he kicked in the door of her house

This evidence was not only impeachable by the female victims prior sworn

testimony and statements to the police it would not have played any meaningful

role if the defendant had proceeded to trial The defendant admitted to kicking in

the door entering the house by force and getting into a physical fight with the

male victim These acts constitute a burglary with an assault andor a battery

Thus the defendant has failed to meet his burden to establish the prejudice prong

under Strickland v Washington 466 US 668 (1984)

Accordingly we affirm the trial courts order denying the defendants

motion for postconviction relief

Affirmed

WELLS J concurs

7

Case no 3D07-2490

Jose A Rivero v The State of Florida

SCHWARTZ Senior Judge (dissenting in part)

I disagree with the courts affirmance of the rejection of appellants Florida

Rule of Criminal Procedure 3850 claim of ineffective assistance of counsel which

was based upon the contention that he had no choice but to plead guilty because his

trial lawyer had lost his file including an allegedly exculpatory tape and the

lawyer was therefore unable to effectively defend him Trial counsel who was the

states only witness on this issue was permitted to present testimony directly

contrary to the defendants-that the file was not lost-by telephone without the

defendants consent and indeed over his specific objections There is no doubt that

this is contrary to Florida Rule of Judicial Administration 2540(d)(1) See Brown

v State 101 So 3d 381 (Fla 1st DCA 2012) Cole v Cole 86 So 3d 1175 (Fla

5th DCA 2012) MS v Dept of Children amp Families 6 So 3d 102 (Fla 4th DCA

2009)

The majority bases affirmance upon the ground of harmless error I believe

that this basis for affirmance which was not raised by the state or the trial court at

any stage of the proceedings below or on appeal is incorrect2 The majority

primarily contends that the specific claim of ineffectiveness presented by the

2 We have been unable to discover a prior instance of reversal on the bases assigned by the majority after a hearing on the merits has already been conducted

8

defendant was conclusively negated-obviating the necessity of an evidentiary

hearing at all-by the colloquy at which the plea was tendered and accepted by the

defendant in which the following occurred

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

While it is true that generalized allegations of coercion and the like may

be negated by answers like these during the plea-taking process see Cartwright v

State 112 So 3d 582 (Fla 4th DCA 2013) this is emphatically not the case when

as here claims of specific instances of attorney incapacity or ineffectiveness are

alleged and demonstrated below See Hayes v State No 2D13-1682 (Fla 2d DCA

Sept 4 2013) (holding that general acknowledgements of satisfaction with counsel

do not conclusively refute claims of ineffective assistance of counsel based on a

failure to pursue specific defense) Jones v State 846 So 2d 1224 (Fla 2d DCA

2003) (same) see also Nelson v State 996 So 2d 950 (Fla 2d DCA 2008)

9

McKune v State 953 So 2d 746 (Fla 2d DCA 2007) In my judgment these

decisions rather than the ones cited by the court are controlling on this issue

The court also finds a basis for harmlessness on the claim that the challenged

testimony was merely cumulative Again this is not the case There was no

testimony whatsoever concerning the allegedly lost file and the attendant

circumstances except for the lawyers erroneously admitted telephonic testimony

which was in turn the only basis for the trial judges rejection of the defendants

position As it said

This Court finds that the July 24 2006 hearing testimony of trial counsel Raphael Ubieta completely refutes this claim of the defendant The defendant alleges that defense counsel lost his case file however the testimonial evidence clearly refutes this claim Throughout the hearing Mr Ubieta was asked more than once if he had misplaced the defendants case file each time Mr Ubieta unequivocally responded he had the file it was not lost and he was ready to go to trial if need be When Mr Ubieta was asked whether he was prepared to try the case Mr Ubieta responded in the affirmative This Court finds the hearing testimony of Mr Ubieta credible and compelling

Since the lawyers testimony on the critical issue in the case was directly

contrary to that of the defendant and was accepted by the trial court and-perhaps

most important-because I believe that we cannot fmd that the violation of the

rules was harmless see Brown 101 So 3d at 382 (holding that the trial courts

error in allowing telephonic testimony in violation Florida Rule of Judicial

Administration 2530 was not harmless absent any other evidence to support the

10

trial courts finding) I would therefore remand the cause for the conduct of a new

evidentiary hearing on the ineffective assistance issue See Brown 101 So 3d at

381 Col_e 86 So 3d at 1175 MS 6 So 3d at 102 I agree with the courts

disposition of the newly discovered evidence point

11

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

jar

3729 1272 70 0 1 From psseseprinrandpressaanpound

Date Ac oun Nudu 4 ExpressPackageService 042nii Pack042sesapserseas

NOTE serviceerderhaschungedPicaseselectearefully

MBeintildeossoa s

(

Name Phone e n

SmdqDekyNOT

D E

conglaquo a deg wcu

oskynscu

o

I Address

03 17 Sir S e

a 27 smeroiyNDiankble

a Saeeday0ehmy

8 a e able

city State ZIP $301 S Packaging 042nusdhseans

2 Y r 31Billing R rence FedampEnvelope FadhPak aFedh

Box Fedh Tube

0

S 3 To

rnommicro Sveswamprt egm 6 Special Handling and Delivery Signature Opuons

n-arae d (

Company

_es 500 suam huvAt scra we cennadeilver to P0 boxes or PD coden rszliglultadloom

amp ID turday

No Signa re R red anare ord=hlaquoy

No a

D Signature may on or ps

e

n ct am

re o

Address Use this

AAR S OcircF19cs the HOLD location address or forcontinuationof your shipping address

a -Ob15ct

- ~ a a a a

City State ZIP

e splusmn

TotalPackages

EnisfedEx Anot karQadhcudk below

Recpient ThirdParty CreditCard

TotalWeight TotalDeclaredValuet o

ashCheck

() Easy new Peel-and-Stick airbill No pouch needed Apply airbill directly to your package See directions on back ggpf ==042042tEr$6miniaaianarlaquorsnwa

asetVu042PanH6M042copyNt2FedEx+PRINTEDINUSA SRF

bs

Subiect to additional Charges See FedEx ServiCe Guide at fedexcom for details All eerchandise sales final

Visit us at fedexcom Or call 1800GoFedEx

18004633339

November 1 2013 101628 PM

Efjiacuterb 3)(stritt Court of 2(ppeal State of Florida July Term AD 2013

Opinion filed September 25 2013 Not final until disposition of timely filed motion for rehearing

No 3D07-2490 Lower Tribunal No 02-6845

Jose A Rivero Appellant

vs

The State of Florida Appellee

An Appeal from the Circuit Court for Miami-Dade County Jorge Perez Judge

Jose A Rivero in proper person

Pamela Jo Bondi Attorney General and Nikole Hiciano Assistant Attorney General for appellee

Before WELLS and ROTHENBERG JJ and SCHWARTZ Senior Judge

ROTHENBERG J

The defendant Jose Rivero appeals from the denial of his rule 3850 motion

for postconviction relief in which he claims that (1) he was pressured into

accepting the States plea offer because his lawyer had lost his case file and (2)

he had obtained newly discovered evidence that would have resulted in an acquittal

had he proceeded to trial Because the plea transcript unequivocally refutes the

defendants first claim and the evidence the defendant relies on is not newly

discovered evidence or evidence that would likely produce an acquittal the

defendants motion should have been summarily denied We therefore affirm the

trial courts order denying the defendant relief

The defendant seeks a reversal of the trial courts order denying his motion

for postconviction relief on the basis of a procedural error committed by the trial

court when it conducted an unnecessary evidentiary hearing which produced

further proof refuting the defendants claims Although it was error to allow the

defendants trial counsel to testify by telephone over the defendants objection at

the evidentiary hearing see Fla R Jud Admin 2530(d)(1) (permitting testimony

by telephone only if all parties consent) because no further proof was necessary

and the defendants allegations were unequivocally refuted without reliance on the

telephonically obtained testimony the error in this case was clearly harmless

Specifically the defendant was charged with burglary with an assault andor

a battery two counts of battery and criminal mischief and he was facing a

2

potential life sentence if convicted of burglary with an assault or battery The State

alleged that in violation of a domestic violence injunction stay-away order the

defendant drove to the victims home saw her kissing another man and when the

victim would not open the door the defendant kicked the door in fought with the

man he saw kissing the victim and slapped the victim The defendant does not

dispute that he kicked the door in and fought with the male occupant He only

disputes that he slapped the victim The plea offered by the State and accepted by

the defendant was a plea of guilty to the charges a withhold of adjudication six

months of community control followed by thirty months of probation with several

special conditions including a stay-away order from the victims and completion

of a domestic violence program

The relevant portions of the plea colloquy are as follows

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

3

Court Do you believe this plea is in your best interest

Defendant Yes

Court The Court finds a factual basis I find that you are alert and intelligent that you understand the nature and consequences of your plea and that you are represented by good and competent counsel which whom you say you are satisfied I find that you are entering into this plea freely and voluntarily I accept your plea of guilty

(emphasis added)

Thus the defendants claim that he was coerced or pressured to accept the

States very lenient plea offer which resulted in his immediate release from jail1

was unequivocally refuted by the record and the defendants first claim should

have been summarily denied _S_ee Cartwright v State 112 So 3d 582 584 (Fla

4th DCA 2013) In Cartwright the Fourth District recognized that

Under Florida law a defendants claim that his plea was the result of coercion by defense counsel may be conclusively refuted by the defendants responses during plea colloquy and the signed plea form Williams v State 919 So 2d 645 646 (Fla 4th DCA 2006) The record reflects that the court engaged in a thorough plea colloquy with Appellant in which Appellant represented that he understood the parameters of the plea that no one had threatened or coerced him into entering a plea that no one had promised him anything and that no

The defendant had been denied bail after a bond hearing was conducted by the trial court based on the defendants violation of a prior court order prohibiting the defendant from having any contact with the victim

4

1

one had misadvised him or made any misrepresentations to him Thus the record refutes Appellants claim that his plea was coerced

See also Alfred v State 71 So 3d 138 139 (Fla 4th DCA 2011) (A defendant is

bound by his sworn answers during a plea colloquy and cannot later disavow those

answers by asserting that he lied during the colloquy at counsels direction)

Davis v State 938 So 2d 555 557 (Fla 1st DCA 2006) (In the instant case the

appellant clearly states on record that he was satisfied with his attorneys services

Thus he cannot now assert that at the time of the pleas entry he had serious

doubts about his attorneys effectiveness) Rackley v State 571 So 2d 533 535

(Fla 1st DCA 1990) (affirming summary denial of the defendants rule 3850

claim of coercion and noting that on numerous occasions the court had rejected

similar claims in other cases alleging ineffective assistance of counsel or coercion

where oral or written statements made by the defendant at sentencing were to the

contrary and that Rackleys written plea contained statements that he had not been

coerced into entering his guilty plea and that he was satisfied with the services of

his attorney thus refuting his claim of coercion) Loconte v State 382 So 2d 26

26 (Fla 1st DCA 1979) (affirming summary denial of Locontes motion to set

aside his plea which he claimed was the result of coercion and promises where

there was a direct denial of coercion and promises by Loconte during his plea

colloquy)

5

Because the defendant in the instant case clearly stated under oath during his

plea colloquy that he was satisfied with the services of his attorney he was not

being pressured or coerced to accept the States offered plea and he was pleading

guilty because he was guilty and for no other reason he cannot now claim that his

plea was the product of coercion Thus the defendants claim of coercion should

have been summarily denied

Although the trial court erred in allowing the defendants trial counsel to

testify telephonically at the unnecessary evidentiary hearing over the defendants

objection this error was harmless beyond a reasonable doubt where trial counsels

testimony only provided additional evidence to refute the defendants claims See

Golden amp Cowan PA v Estate of Kosofsky 45 So 3d 986 987-88 (Fla 3d DCA

2010) (holding that the trial courts error in allowing telephonic testimony over the

appellants objection and in violation of rule 2530(d)(1) was harmless due to the

existence of other independent evidence which would have supported the trial

courts decision) SA v Dept of Children amp Family Servs 961 So 2d 1066

1067 (Fla 3d DCA 2007) (telephonic testimony permitted over mothers objection

in dependency hearing held to be harmless error because even if the telephonic

testimony was excluded there was other evidence supporting the trial courts

ruling) Quinones v Quinones 870 So 2d 108 109 (Fla 2d DCA 2003) (finding

6

no reversible error where the wife in a dissolution of marriage proceeding was

permitted over objection to testify telephonically)

We additionally reject the defendants second claim of newly discovered

evidence The newly discovered evidence which the defendant claims entitles

him to set aside his plea is the female victims later recantation of her prior sworn

testimony that the defendant slapped her after he kicked in the door of her house

This evidence was not only impeachable by the female victims prior sworn

testimony and statements to the police it would not have played any meaningful

role if the defendant had proceeded to trial The defendant admitted to kicking in

the door entering the house by force and getting into a physical fight with the

male victim These acts constitute a burglary with an assault andor a battery

Thus the defendant has failed to meet his burden to establish the prejudice prong

under Strickland v Washington 466 US 668 (1984)

Accordingly we affirm the trial courts order denying the defendants

motion for postconviction relief

Affirmed

WELLS J concurs

7

Case no 3D07-2490

Jose A Rivero v The State of Florida

SCHWARTZ Senior Judge (dissenting in part)

I disagree with the courts affirmance of the rejection of appellants Florida

Rule of Criminal Procedure 3850 claim of ineffective assistance of counsel which

was based upon the contention that he had no choice but to plead guilty because his

trial lawyer had lost his file including an allegedly exculpatory tape and the

lawyer was therefore unable to effectively defend him Trial counsel who was the

states only witness on this issue was permitted to present testimony directly

contrary to the defendants-that the file was not lost-by telephone without the

defendants consent and indeed over his specific objections There is no doubt that

this is contrary to Florida Rule of Judicial Administration 2540(d)(1) See Brown

v State 101 So 3d 381 (Fla 1st DCA 2012) Cole v Cole 86 So 3d 1175 (Fla

5th DCA 2012) MS v Dept of Children amp Families 6 So 3d 102 (Fla 4th DCA

2009)

The majority bases affirmance upon the ground of harmless error I believe

that this basis for affirmance which was not raised by the state or the trial court at

any stage of the proceedings below or on appeal is incorrect2 The majority

primarily contends that the specific claim of ineffectiveness presented by the

2 We have been unable to discover a prior instance of reversal on the bases assigned by the majority after a hearing on the merits has already been conducted

8

defendant was conclusively negated-obviating the necessity of an evidentiary

hearing at all-by the colloquy at which the plea was tendered and accepted by the

defendant in which the following occurred

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

While it is true that generalized allegations of coercion and the like may

be negated by answers like these during the plea-taking process see Cartwright v

State 112 So 3d 582 (Fla 4th DCA 2013) this is emphatically not the case when

as here claims of specific instances of attorney incapacity or ineffectiveness are

alleged and demonstrated below See Hayes v State No 2D13-1682 (Fla 2d DCA

Sept 4 2013) (holding that general acknowledgements of satisfaction with counsel

do not conclusively refute claims of ineffective assistance of counsel based on a

failure to pursue specific defense) Jones v State 846 So 2d 1224 (Fla 2d DCA

2003) (same) see also Nelson v State 996 So 2d 950 (Fla 2d DCA 2008)

9

McKune v State 953 So 2d 746 (Fla 2d DCA 2007) In my judgment these

decisions rather than the ones cited by the court are controlling on this issue

The court also finds a basis for harmlessness on the claim that the challenged

testimony was merely cumulative Again this is not the case There was no

testimony whatsoever concerning the allegedly lost file and the attendant

circumstances except for the lawyers erroneously admitted telephonic testimony

which was in turn the only basis for the trial judges rejection of the defendants

position As it said

This Court finds that the July 24 2006 hearing testimony of trial counsel Raphael Ubieta completely refutes this claim of the defendant The defendant alleges that defense counsel lost his case file however the testimonial evidence clearly refutes this claim Throughout the hearing Mr Ubieta was asked more than once if he had misplaced the defendants case file each time Mr Ubieta unequivocally responded he had the file it was not lost and he was ready to go to trial if need be When Mr Ubieta was asked whether he was prepared to try the case Mr Ubieta responded in the affirmative This Court finds the hearing testimony of Mr Ubieta credible and compelling

Since the lawyers testimony on the critical issue in the case was directly

contrary to that of the defendant and was accepted by the trial court and-perhaps

most important-because I believe that we cannot fmd that the violation of the

rules was harmless see Brown 101 So 3d at 382 (holding that the trial courts

error in allowing telephonic testimony in violation Florida Rule of Judicial

Administration 2530 was not harmless absent any other evidence to support the

10

trial courts finding) I would therefore remand the cause for the conduct of a new

evidentiary hearing on the ineffective assistance issue See Brown 101 So 3d at

381 Col_e 86 So 3d at 1175 MS 6 So 3d at 102 I agree with the courts

disposition of the newly discovered evidence point

11

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

jar

3729 1272 70 0 1 From psseseprinrandpressaanpound

Date Ac oun Nudu 4 ExpressPackageService 042nii Pack042sesapserseas

NOTE serviceerderhaschungedPicaseselectearefully

MBeintildeossoa s

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Name Phone e n

SmdqDekyNOT

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oskynscu

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03 17 Sir S e

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city State ZIP $301 S Packaging 042nusdhseans

2 Y r 31Billing R rence FedampEnvelope FadhPak aFedh

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_es 500 suam huvAt scra we cennadeilver to P0 boxes or PD coden rszliglultadloom

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EnisfedEx Anot karQadhcudk below

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TotalWeight TotalDeclaredValuet o

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() Easy new Peel-and-Stick airbill No pouch needed Apply airbill directly to your package See directions on back ggpf ==042042tEr$6miniaaianarlaquorsnwa

asetVu042PanH6M042copyNt2FedEx+PRINTEDINUSA SRF

bs

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18004633339

November 1 2013 101628 PM

The defendant Jose Rivero appeals from the denial of his rule 3850 motion

for postconviction relief in which he claims that (1) he was pressured into

accepting the States plea offer because his lawyer had lost his case file and (2)

he had obtained newly discovered evidence that would have resulted in an acquittal

had he proceeded to trial Because the plea transcript unequivocally refutes the

defendants first claim and the evidence the defendant relies on is not newly

discovered evidence or evidence that would likely produce an acquittal the

defendants motion should have been summarily denied We therefore affirm the

trial courts order denying the defendant relief

The defendant seeks a reversal of the trial courts order denying his motion

for postconviction relief on the basis of a procedural error committed by the trial

court when it conducted an unnecessary evidentiary hearing which produced

further proof refuting the defendants claims Although it was error to allow the

defendants trial counsel to testify by telephone over the defendants objection at

the evidentiary hearing see Fla R Jud Admin 2530(d)(1) (permitting testimony

by telephone only if all parties consent) because no further proof was necessary

and the defendants allegations were unequivocally refuted without reliance on the

telephonically obtained testimony the error in this case was clearly harmless

Specifically the defendant was charged with burglary with an assault andor

a battery two counts of battery and criminal mischief and he was facing a

2

potential life sentence if convicted of burglary with an assault or battery The State

alleged that in violation of a domestic violence injunction stay-away order the

defendant drove to the victims home saw her kissing another man and when the

victim would not open the door the defendant kicked the door in fought with the

man he saw kissing the victim and slapped the victim The defendant does not

dispute that he kicked the door in and fought with the male occupant He only

disputes that he slapped the victim The plea offered by the State and accepted by

the defendant was a plea of guilty to the charges a withhold of adjudication six

months of community control followed by thirty months of probation with several

special conditions including a stay-away order from the victims and completion

of a domestic violence program

The relevant portions of the plea colloquy are as follows

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

3

Court Do you believe this plea is in your best interest

Defendant Yes

Court The Court finds a factual basis I find that you are alert and intelligent that you understand the nature and consequences of your plea and that you are represented by good and competent counsel which whom you say you are satisfied I find that you are entering into this plea freely and voluntarily I accept your plea of guilty

(emphasis added)

Thus the defendants claim that he was coerced or pressured to accept the

States very lenient plea offer which resulted in his immediate release from jail1

was unequivocally refuted by the record and the defendants first claim should

have been summarily denied _S_ee Cartwright v State 112 So 3d 582 584 (Fla

4th DCA 2013) In Cartwright the Fourth District recognized that

Under Florida law a defendants claim that his plea was the result of coercion by defense counsel may be conclusively refuted by the defendants responses during plea colloquy and the signed plea form Williams v State 919 So 2d 645 646 (Fla 4th DCA 2006) The record reflects that the court engaged in a thorough plea colloquy with Appellant in which Appellant represented that he understood the parameters of the plea that no one had threatened or coerced him into entering a plea that no one had promised him anything and that no

The defendant had been denied bail after a bond hearing was conducted by the trial court based on the defendants violation of a prior court order prohibiting the defendant from having any contact with the victim

4

1

one had misadvised him or made any misrepresentations to him Thus the record refutes Appellants claim that his plea was coerced

See also Alfred v State 71 So 3d 138 139 (Fla 4th DCA 2011) (A defendant is

bound by his sworn answers during a plea colloquy and cannot later disavow those

answers by asserting that he lied during the colloquy at counsels direction)

Davis v State 938 So 2d 555 557 (Fla 1st DCA 2006) (In the instant case the

appellant clearly states on record that he was satisfied with his attorneys services

Thus he cannot now assert that at the time of the pleas entry he had serious

doubts about his attorneys effectiveness) Rackley v State 571 So 2d 533 535

(Fla 1st DCA 1990) (affirming summary denial of the defendants rule 3850

claim of coercion and noting that on numerous occasions the court had rejected

similar claims in other cases alleging ineffective assistance of counsel or coercion

where oral or written statements made by the defendant at sentencing were to the

contrary and that Rackleys written plea contained statements that he had not been

coerced into entering his guilty plea and that he was satisfied with the services of

his attorney thus refuting his claim of coercion) Loconte v State 382 So 2d 26

26 (Fla 1st DCA 1979) (affirming summary denial of Locontes motion to set

aside his plea which he claimed was the result of coercion and promises where

there was a direct denial of coercion and promises by Loconte during his plea

colloquy)

5

Because the defendant in the instant case clearly stated under oath during his

plea colloquy that he was satisfied with the services of his attorney he was not

being pressured or coerced to accept the States offered plea and he was pleading

guilty because he was guilty and for no other reason he cannot now claim that his

plea was the product of coercion Thus the defendants claim of coercion should

have been summarily denied

Although the trial court erred in allowing the defendants trial counsel to

testify telephonically at the unnecessary evidentiary hearing over the defendants

objection this error was harmless beyond a reasonable doubt where trial counsels

testimony only provided additional evidence to refute the defendants claims See

Golden amp Cowan PA v Estate of Kosofsky 45 So 3d 986 987-88 (Fla 3d DCA

2010) (holding that the trial courts error in allowing telephonic testimony over the

appellants objection and in violation of rule 2530(d)(1) was harmless due to the

existence of other independent evidence which would have supported the trial

courts decision) SA v Dept of Children amp Family Servs 961 So 2d 1066

1067 (Fla 3d DCA 2007) (telephonic testimony permitted over mothers objection

in dependency hearing held to be harmless error because even if the telephonic

testimony was excluded there was other evidence supporting the trial courts

ruling) Quinones v Quinones 870 So 2d 108 109 (Fla 2d DCA 2003) (finding

6

no reversible error where the wife in a dissolution of marriage proceeding was

permitted over objection to testify telephonically)

We additionally reject the defendants second claim of newly discovered

evidence The newly discovered evidence which the defendant claims entitles

him to set aside his plea is the female victims later recantation of her prior sworn

testimony that the defendant slapped her after he kicked in the door of her house

This evidence was not only impeachable by the female victims prior sworn

testimony and statements to the police it would not have played any meaningful

role if the defendant had proceeded to trial The defendant admitted to kicking in

the door entering the house by force and getting into a physical fight with the

male victim These acts constitute a burglary with an assault andor a battery

Thus the defendant has failed to meet his burden to establish the prejudice prong

under Strickland v Washington 466 US 668 (1984)

Accordingly we affirm the trial courts order denying the defendants

motion for postconviction relief

Affirmed

WELLS J concurs

7

Case no 3D07-2490

Jose A Rivero v The State of Florida

SCHWARTZ Senior Judge (dissenting in part)

I disagree with the courts affirmance of the rejection of appellants Florida

Rule of Criminal Procedure 3850 claim of ineffective assistance of counsel which

was based upon the contention that he had no choice but to plead guilty because his

trial lawyer had lost his file including an allegedly exculpatory tape and the

lawyer was therefore unable to effectively defend him Trial counsel who was the

states only witness on this issue was permitted to present testimony directly

contrary to the defendants-that the file was not lost-by telephone without the

defendants consent and indeed over his specific objections There is no doubt that

this is contrary to Florida Rule of Judicial Administration 2540(d)(1) See Brown

v State 101 So 3d 381 (Fla 1st DCA 2012) Cole v Cole 86 So 3d 1175 (Fla

5th DCA 2012) MS v Dept of Children amp Families 6 So 3d 102 (Fla 4th DCA

2009)

The majority bases affirmance upon the ground of harmless error I believe

that this basis for affirmance which was not raised by the state or the trial court at

any stage of the proceedings below or on appeal is incorrect2 The majority

primarily contends that the specific claim of ineffectiveness presented by the

2 We have been unable to discover a prior instance of reversal on the bases assigned by the majority after a hearing on the merits has already been conducted

8

defendant was conclusively negated-obviating the necessity of an evidentiary

hearing at all-by the colloquy at which the plea was tendered and accepted by the

defendant in which the following occurred

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

While it is true that generalized allegations of coercion and the like may

be negated by answers like these during the plea-taking process see Cartwright v

State 112 So 3d 582 (Fla 4th DCA 2013) this is emphatically not the case when

as here claims of specific instances of attorney incapacity or ineffectiveness are

alleged and demonstrated below See Hayes v State No 2D13-1682 (Fla 2d DCA

Sept 4 2013) (holding that general acknowledgements of satisfaction with counsel

do not conclusively refute claims of ineffective assistance of counsel based on a

failure to pursue specific defense) Jones v State 846 So 2d 1224 (Fla 2d DCA

2003) (same) see also Nelson v State 996 So 2d 950 (Fla 2d DCA 2008)

9

McKune v State 953 So 2d 746 (Fla 2d DCA 2007) In my judgment these

decisions rather than the ones cited by the court are controlling on this issue

The court also finds a basis for harmlessness on the claim that the challenged

testimony was merely cumulative Again this is not the case There was no

testimony whatsoever concerning the allegedly lost file and the attendant

circumstances except for the lawyers erroneously admitted telephonic testimony

which was in turn the only basis for the trial judges rejection of the defendants

position As it said

This Court finds that the July 24 2006 hearing testimony of trial counsel Raphael Ubieta completely refutes this claim of the defendant The defendant alleges that defense counsel lost his case file however the testimonial evidence clearly refutes this claim Throughout the hearing Mr Ubieta was asked more than once if he had misplaced the defendants case file each time Mr Ubieta unequivocally responded he had the file it was not lost and he was ready to go to trial if need be When Mr Ubieta was asked whether he was prepared to try the case Mr Ubieta responded in the affirmative This Court finds the hearing testimony of Mr Ubieta credible and compelling

Since the lawyers testimony on the critical issue in the case was directly

contrary to that of the defendant and was accepted by the trial court and-perhaps

most important-because I believe that we cannot fmd that the violation of the

rules was harmless see Brown 101 So 3d at 382 (holding that the trial courts

error in allowing telephonic testimony in violation Florida Rule of Judicial

Administration 2530 was not harmless absent any other evidence to support the

10

trial courts finding) I would therefore remand the cause for the conduct of a new

evidentiary hearing on the ineffective assistance issue See Brown 101 So 3d at

381 Col_e 86 So 3d at 1175 MS 6 So 3d at 102 I agree with the courts

disposition of the newly discovered evidence point

11

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

jar

3729 1272 70 0 1 From psseseprinrandpressaanpound

Date Ac oun Nudu 4 ExpressPackageService 042nii Pack042sesapserseas

NOTE serviceerderhaschungedPicaseselectearefully

MBeintildeossoa s

(

Name Phone e n

SmdqDekyNOT

D E

conglaquo a deg wcu

oskynscu

o

I Address

03 17 Sir S e

a 27 smeroiyNDiankble

a Saeeday0ehmy

8 a e able

city State ZIP $301 S Packaging 042nusdhseans

2 Y r 31Billing R rence FedampEnvelope FadhPak aFedh

Box Fedh Tube

0

S 3 To

rnommicro Sveswamprt egm 6 Special Handling and Delivery Signature Opuons

n-arae d (

Company

_es 500 suam huvAt scra we cennadeilver to P0 boxes or PD coden rszliglultadloom

amp ID turday

No Signa re R red anare ord=hlaquoy

No a

D Signature may on or ps

e

n ct am

re o

Address Use this

AAR S OcircF19cs the HOLD location address or forcontinuationof your shipping address

a -Ob15ct

- ~ a a a a

City State ZIP

e splusmn

TotalPackages

EnisfedEx Anot karQadhcudk below

Recpient ThirdParty CreditCard

TotalWeight TotalDeclaredValuet o

ashCheck

() Easy new Peel-and-Stick airbill No pouch needed Apply airbill directly to your package See directions on back ggpf ==042042tEr$6miniaaianarlaquorsnwa

asetVu042PanH6M042copyNt2FedEx+PRINTEDINUSA SRF

bs

Subiect to additional Charges See FedEx ServiCe Guide at fedexcom for details All eerchandise sales final

Visit us at fedexcom Or call 1800GoFedEx

18004633339

November 1 2013 101628 PM

potential life sentence if convicted of burglary with an assault or battery The State

alleged that in violation of a domestic violence injunction stay-away order the

defendant drove to the victims home saw her kissing another man and when the

victim would not open the door the defendant kicked the door in fought with the

man he saw kissing the victim and slapped the victim The defendant does not

dispute that he kicked the door in and fought with the male occupant He only

disputes that he slapped the victim The plea offered by the State and accepted by

the defendant was a plea of guilty to the charges a withhold of adjudication six

months of community control followed by thirty months of probation with several

special conditions including a stay-away order from the victims and completion

of a domestic violence program

The relevant portions of the plea colloquy are as follows

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

3

Court Do you believe this plea is in your best interest

Defendant Yes

Court The Court finds a factual basis I find that you are alert and intelligent that you understand the nature and consequences of your plea and that you are represented by good and competent counsel which whom you say you are satisfied I find that you are entering into this plea freely and voluntarily I accept your plea of guilty

(emphasis added)

Thus the defendants claim that he was coerced or pressured to accept the

States very lenient plea offer which resulted in his immediate release from jail1

was unequivocally refuted by the record and the defendants first claim should

have been summarily denied _S_ee Cartwright v State 112 So 3d 582 584 (Fla

4th DCA 2013) In Cartwright the Fourth District recognized that

Under Florida law a defendants claim that his plea was the result of coercion by defense counsel may be conclusively refuted by the defendants responses during plea colloquy and the signed plea form Williams v State 919 So 2d 645 646 (Fla 4th DCA 2006) The record reflects that the court engaged in a thorough plea colloquy with Appellant in which Appellant represented that he understood the parameters of the plea that no one had threatened or coerced him into entering a plea that no one had promised him anything and that no

The defendant had been denied bail after a bond hearing was conducted by the trial court based on the defendants violation of a prior court order prohibiting the defendant from having any contact with the victim

4

1

one had misadvised him or made any misrepresentations to him Thus the record refutes Appellants claim that his plea was coerced

See also Alfred v State 71 So 3d 138 139 (Fla 4th DCA 2011) (A defendant is

bound by his sworn answers during a plea colloquy and cannot later disavow those

answers by asserting that he lied during the colloquy at counsels direction)

Davis v State 938 So 2d 555 557 (Fla 1st DCA 2006) (In the instant case the

appellant clearly states on record that he was satisfied with his attorneys services

Thus he cannot now assert that at the time of the pleas entry he had serious

doubts about his attorneys effectiveness) Rackley v State 571 So 2d 533 535

(Fla 1st DCA 1990) (affirming summary denial of the defendants rule 3850

claim of coercion and noting that on numerous occasions the court had rejected

similar claims in other cases alleging ineffective assistance of counsel or coercion

where oral or written statements made by the defendant at sentencing were to the

contrary and that Rackleys written plea contained statements that he had not been

coerced into entering his guilty plea and that he was satisfied with the services of

his attorney thus refuting his claim of coercion) Loconte v State 382 So 2d 26

26 (Fla 1st DCA 1979) (affirming summary denial of Locontes motion to set

aside his plea which he claimed was the result of coercion and promises where

there was a direct denial of coercion and promises by Loconte during his plea

colloquy)

5

Because the defendant in the instant case clearly stated under oath during his

plea colloquy that he was satisfied with the services of his attorney he was not

being pressured or coerced to accept the States offered plea and he was pleading

guilty because he was guilty and for no other reason he cannot now claim that his

plea was the product of coercion Thus the defendants claim of coercion should

have been summarily denied

Although the trial court erred in allowing the defendants trial counsel to

testify telephonically at the unnecessary evidentiary hearing over the defendants

objection this error was harmless beyond a reasonable doubt where trial counsels

testimony only provided additional evidence to refute the defendants claims See

Golden amp Cowan PA v Estate of Kosofsky 45 So 3d 986 987-88 (Fla 3d DCA

2010) (holding that the trial courts error in allowing telephonic testimony over the

appellants objection and in violation of rule 2530(d)(1) was harmless due to the

existence of other independent evidence which would have supported the trial

courts decision) SA v Dept of Children amp Family Servs 961 So 2d 1066

1067 (Fla 3d DCA 2007) (telephonic testimony permitted over mothers objection

in dependency hearing held to be harmless error because even if the telephonic

testimony was excluded there was other evidence supporting the trial courts

ruling) Quinones v Quinones 870 So 2d 108 109 (Fla 2d DCA 2003) (finding

6

no reversible error where the wife in a dissolution of marriage proceeding was

permitted over objection to testify telephonically)

We additionally reject the defendants second claim of newly discovered

evidence The newly discovered evidence which the defendant claims entitles

him to set aside his plea is the female victims later recantation of her prior sworn

testimony that the defendant slapped her after he kicked in the door of her house

This evidence was not only impeachable by the female victims prior sworn

testimony and statements to the police it would not have played any meaningful

role if the defendant had proceeded to trial The defendant admitted to kicking in

the door entering the house by force and getting into a physical fight with the

male victim These acts constitute a burglary with an assault andor a battery

Thus the defendant has failed to meet his burden to establish the prejudice prong

under Strickland v Washington 466 US 668 (1984)

Accordingly we affirm the trial courts order denying the defendants

motion for postconviction relief

Affirmed

WELLS J concurs

7

Case no 3D07-2490

Jose A Rivero v The State of Florida

SCHWARTZ Senior Judge (dissenting in part)

I disagree with the courts affirmance of the rejection of appellants Florida

Rule of Criminal Procedure 3850 claim of ineffective assistance of counsel which

was based upon the contention that he had no choice but to plead guilty because his

trial lawyer had lost his file including an allegedly exculpatory tape and the

lawyer was therefore unable to effectively defend him Trial counsel who was the

states only witness on this issue was permitted to present testimony directly

contrary to the defendants-that the file was not lost-by telephone without the

defendants consent and indeed over his specific objections There is no doubt that

this is contrary to Florida Rule of Judicial Administration 2540(d)(1) See Brown

v State 101 So 3d 381 (Fla 1st DCA 2012) Cole v Cole 86 So 3d 1175 (Fla

5th DCA 2012) MS v Dept of Children amp Families 6 So 3d 102 (Fla 4th DCA

2009)

The majority bases affirmance upon the ground of harmless error I believe

that this basis for affirmance which was not raised by the state or the trial court at

any stage of the proceedings below or on appeal is incorrect2 The majority

primarily contends that the specific claim of ineffectiveness presented by the

2 We have been unable to discover a prior instance of reversal on the bases assigned by the majority after a hearing on the merits has already been conducted

8

defendant was conclusively negated-obviating the necessity of an evidentiary

hearing at all-by the colloquy at which the plea was tendered and accepted by the

defendant in which the following occurred

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

While it is true that generalized allegations of coercion and the like may

be negated by answers like these during the plea-taking process see Cartwright v

State 112 So 3d 582 (Fla 4th DCA 2013) this is emphatically not the case when

as here claims of specific instances of attorney incapacity or ineffectiveness are

alleged and demonstrated below See Hayes v State No 2D13-1682 (Fla 2d DCA

Sept 4 2013) (holding that general acknowledgements of satisfaction with counsel

do not conclusively refute claims of ineffective assistance of counsel based on a

failure to pursue specific defense) Jones v State 846 So 2d 1224 (Fla 2d DCA

2003) (same) see also Nelson v State 996 So 2d 950 (Fla 2d DCA 2008)

9

McKune v State 953 So 2d 746 (Fla 2d DCA 2007) In my judgment these

decisions rather than the ones cited by the court are controlling on this issue

The court also finds a basis for harmlessness on the claim that the challenged

testimony was merely cumulative Again this is not the case There was no

testimony whatsoever concerning the allegedly lost file and the attendant

circumstances except for the lawyers erroneously admitted telephonic testimony

which was in turn the only basis for the trial judges rejection of the defendants

position As it said

This Court finds that the July 24 2006 hearing testimony of trial counsel Raphael Ubieta completely refutes this claim of the defendant The defendant alleges that defense counsel lost his case file however the testimonial evidence clearly refutes this claim Throughout the hearing Mr Ubieta was asked more than once if he had misplaced the defendants case file each time Mr Ubieta unequivocally responded he had the file it was not lost and he was ready to go to trial if need be When Mr Ubieta was asked whether he was prepared to try the case Mr Ubieta responded in the affirmative This Court finds the hearing testimony of Mr Ubieta credible and compelling

Since the lawyers testimony on the critical issue in the case was directly

contrary to that of the defendant and was accepted by the trial court and-perhaps

most important-because I believe that we cannot fmd that the violation of the

rules was harmless see Brown 101 So 3d at 382 (holding that the trial courts

error in allowing telephonic testimony in violation Florida Rule of Judicial

Administration 2530 was not harmless absent any other evidence to support the

10

trial courts finding) I would therefore remand the cause for the conduct of a new

evidentiary hearing on the ineffective assistance issue See Brown 101 So 3d at

381 Col_e 86 So 3d at 1175 MS 6 So 3d at 102 I agree with the courts

disposition of the newly discovered evidence point

11

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

jar

3729 1272 70 0 1 From psseseprinrandpressaanpound

Date Ac oun Nudu 4 ExpressPackageService 042nii Pack042sesapserseas

NOTE serviceerderhaschungedPicaseselectearefully

MBeintildeossoa s

(

Name Phone e n

SmdqDekyNOT

D E

conglaquo a deg wcu

oskynscu

o

I Address

03 17 Sir S e

a 27 smeroiyNDiankble

a Saeeday0ehmy

8 a e able

city State ZIP $301 S Packaging 042nusdhseans

2 Y r 31Billing R rence FedampEnvelope FadhPak aFedh

Box Fedh Tube

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amp ID turday

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a -Ob15ct

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TotalPackages

EnisfedEx Anot karQadhcudk below

Recpient ThirdParty CreditCard

TotalWeight TotalDeclaredValuet o

ashCheck

() Easy new Peel-and-Stick airbill No pouch needed Apply airbill directly to your package See directions on back ggpf ==042042tEr$6miniaaianarlaquorsnwa

asetVu042PanH6M042copyNt2FedEx+PRINTEDINUSA SRF

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18004633339

November 1 2013 101628 PM

Court Do you believe this plea is in your best interest

Defendant Yes

Court The Court finds a factual basis I find that you are alert and intelligent that you understand the nature and consequences of your plea and that you are represented by good and competent counsel which whom you say you are satisfied I find that you are entering into this plea freely and voluntarily I accept your plea of guilty

(emphasis added)

Thus the defendants claim that he was coerced or pressured to accept the

States very lenient plea offer which resulted in his immediate release from jail1

was unequivocally refuted by the record and the defendants first claim should

have been summarily denied _S_ee Cartwright v State 112 So 3d 582 584 (Fla

4th DCA 2013) In Cartwright the Fourth District recognized that

Under Florida law a defendants claim that his plea was the result of coercion by defense counsel may be conclusively refuted by the defendants responses during plea colloquy and the signed plea form Williams v State 919 So 2d 645 646 (Fla 4th DCA 2006) The record reflects that the court engaged in a thorough plea colloquy with Appellant in which Appellant represented that he understood the parameters of the plea that no one had threatened or coerced him into entering a plea that no one had promised him anything and that no

The defendant had been denied bail after a bond hearing was conducted by the trial court based on the defendants violation of a prior court order prohibiting the defendant from having any contact with the victim

4

1

one had misadvised him or made any misrepresentations to him Thus the record refutes Appellants claim that his plea was coerced

See also Alfred v State 71 So 3d 138 139 (Fla 4th DCA 2011) (A defendant is

bound by his sworn answers during a plea colloquy and cannot later disavow those

answers by asserting that he lied during the colloquy at counsels direction)

Davis v State 938 So 2d 555 557 (Fla 1st DCA 2006) (In the instant case the

appellant clearly states on record that he was satisfied with his attorneys services

Thus he cannot now assert that at the time of the pleas entry he had serious

doubts about his attorneys effectiveness) Rackley v State 571 So 2d 533 535

(Fla 1st DCA 1990) (affirming summary denial of the defendants rule 3850

claim of coercion and noting that on numerous occasions the court had rejected

similar claims in other cases alleging ineffective assistance of counsel or coercion

where oral or written statements made by the defendant at sentencing were to the

contrary and that Rackleys written plea contained statements that he had not been

coerced into entering his guilty plea and that he was satisfied with the services of

his attorney thus refuting his claim of coercion) Loconte v State 382 So 2d 26

26 (Fla 1st DCA 1979) (affirming summary denial of Locontes motion to set

aside his plea which he claimed was the result of coercion and promises where

there was a direct denial of coercion and promises by Loconte during his plea

colloquy)

5

Because the defendant in the instant case clearly stated under oath during his

plea colloquy that he was satisfied with the services of his attorney he was not

being pressured or coerced to accept the States offered plea and he was pleading

guilty because he was guilty and for no other reason he cannot now claim that his

plea was the product of coercion Thus the defendants claim of coercion should

have been summarily denied

Although the trial court erred in allowing the defendants trial counsel to

testify telephonically at the unnecessary evidentiary hearing over the defendants

objection this error was harmless beyond a reasonable doubt where trial counsels

testimony only provided additional evidence to refute the defendants claims See

Golden amp Cowan PA v Estate of Kosofsky 45 So 3d 986 987-88 (Fla 3d DCA

2010) (holding that the trial courts error in allowing telephonic testimony over the

appellants objection and in violation of rule 2530(d)(1) was harmless due to the

existence of other independent evidence which would have supported the trial

courts decision) SA v Dept of Children amp Family Servs 961 So 2d 1066

1067 (Fla 3d DCA 2007) (telephonic testimony permitted over mothers objection

in dependency hearing held to be harmless error because even if the telephonic

testimony was excluded there was other evidence supporting the trial courts

ruling) Quinones v Quinones 870 So 2d 108 109 (Fla 2d DCA 2003) (finding

6

no reversible error where the wife in a dissolution of marriage proceeding was

permitted over objection to testify telephonically)

We additionally reject the defendants second claim of newly discovered

evidence The newly discovered evidence which the defendant claims entitles

him to set aside his plea is the female victims later recantation of her prior sworn

testimony that the defendant slapped her after he kicked in the door of her house

This evidence was not only impeachable by the female victims prior sworn

testimony and statements to the police it would not have played any meaningful

role if the defendant had proceeded to trial The defendant admitted to kicking in

the door entering the house by force and getting into a physical fight with the

male victim These acts constitute a burglary with an assault andor a battery

Thus the defendant has failed to meet his burden to establish the prejudice prong

under Strickland v Washington 466 US 668 (1984)

Accordingly we affirm the trial courts order denying the defendants

motion for postconviction relief

Affirmed

WELLS J concurs

7

Case no 3D07-2490

Jose A Rivero v The State of Florida

SCHWARTZ Senior Judge (dissenting in part)

I disagree with the courts affirmance of the rejection of appellants Florida

Rule of Criminal Procedure 3850 claim of ineffective assistance of counsel which

was based upon the contention that he had no choice but to plead guilty because his

trial lawyer had lost his file including an allegedly exculpatory tape and the

lawyer was therefore unable to effectively defend him Trial counsel who was the

states only witness on this issue was permitted to present testimony directly

contrary to the defendants-that the file was not lost-by telephone without the

defendants consent and indeed over his specific objections There is no doubt that

this is contrary to Florida Rule of Judicial Administration 2540(d)(1) See Brown

v State 101 So 3d 381 (Fla 1st DCA 2012) Cole v Cole 86 So 3d 1175 (Fla

5th DCA 2012) MS v Dept of Children amp Families 6 So 3d 102 (Fla 4th DCA

2009)

The majority bases affirmance upon the ground of harmless error I believe

that this basis for affirmance which was not raised by the state or the trial court at

any stage of the proceedings below or on appeal is incorrect2 The majority

primarily contends that the specific claim of ineffectiveness presented by the

2 We have been unable to discover a prior instance of reversal on the bases assigned by the majority after a hearing on the merits has already been conducted

8

defendant was conclusively negated-obviating the necessity of an evidentiary

hearing at all-by the colloquy at which the plea was tendered and accepted by the

defendant in which the following occurred

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

While it is true that generalized allegations of coercion and the like may

be negated by answers like these during the plea-taking process see Cartwright v

State 112 So 3d 582 (Fla 4th DCA 2013) this is emphatically not the case when

as here claims of specific instances of attorney incapacity or ineffectiveness are

alleged and demonstrated below See Hayes v State No 2D13-1682 (Fla 2d DCA

Sept 4 2013) (holding that general acknowledgements of satisfaction with counsel

do not conclusively refute claims of ineffective assistance of counsel based on a

failure to pursue specific defense) Jones v State 846 So 2d 1224 (Fla 2d DCA

2003) (same) see also Nelson v State 996 So 2d 950 (Fla 2d DCA 2008)

9

McKune v State 953 So 2d 746 (Fla 2d DCA 2007) In my judgment these

decisions rather than the ones cited by the court are controlling on this issue

The court also finds a basis for harmlessness on the claim that the challenged

testimony was merely cumulative Again this is not the case There was no

testimony whatsoever concerning the allegedly lost file and the attendant

circumstances except for the lawyers erroneously admitted telephonic testimony

which was in turn the only basis for the trial judges rejection of the defendants

position As it said

This Court finds that the July 24 2006 hearing testimony of trial counsel Raphael Ubieta completely refutes this claim of the defendant The defendant alleges that defense counsel lost his case file however the testimonial evidence clearly refutes this claim Throughout the hearing Mr Ubieta was asked more than once if he had misplaced the defendants case file each time Mr Ubieta unequivocally responded he had the file it was not lost and he was ready to go to trial if need be When Mr Ubieta was asked whether he was prepared to try the case Mr Ubieta responded in the affirmative This Court finds the hearing testimony of Mr Ubieta credible and compelling

Since the lawyers testimony on the critical issue in the case was directly

contrary to that of the defendant and was accepted by the trial court and-perhaps

most important-because I believe that we cannot fmd that the violation of the

rules was harmless see Brown 101 So 3d at 382 (holding that the trial courts

error in allowing telephonic testimony in violation Florida Rule of Judicial

Administration 2530 was not harmless absent any other evidence to support the

10

trial courts finding) I would therefore remand the cause for the conduct of a new

evidentiary hearing on the ineffective assistance issue See Brown 101 So 3d at

381 Col_e 86 So 3d at 1175 MS 6 So 3d at 102 I agree with the courts

disposition of the newly discovered evidence point

11

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

jar

3729 1272 70 0 1 From psseseprinrandpressaanpound

Date Ac oun Nudu 4 ExpressPackageService 042nii Pack042sesapserseas

NOTE serviceerderhaschungedPicaseselectearefully

MBeintildeossoa s

(

Name Phone e n

SmdqDekyNOT

D E

conglaquo a deg wcu

oskynscu

o

I Address

03 17 Sir S e

a 27 smeroiyNDiankble

a Saeeday0ehmy

8 a e able

city State ZIP $301 S Packaging 042nusdhseans

2 Y r 31Billing R rence FedampEnvelope FadhPak aFedh

Box Fedh Tube

0

S 3 To

rnommicro Sveswamprt egm 6 Special Handling and Delivery Signature Opuons

n-arae d (

Company

_es 500 suam huvAt scra we cennadeilver to P0 boxes or PD coden rszliglultadloom

amp ID turday

No Signa re R red anare ord=hlaquoy

No a

D Signature may on or ps

e

n ct am

re o

Address Use this

AAR S OcircF19cs the HOLD location address or forcontinuationof your shipping address

a -Ob15ct

- ~ a a a a

City State ZIP

e splusmn

TotalPackages

EnisfedEx Anot karQadhcudk below

Recpient ThirdParty CreditCard

TotalWeight TotalDeclaredValuet o

ashCheck

() Easy new Peel-and-Stick airbill No pouch needed Apply airbill directly to your package See directions on back ggpf ==042042tEr$6miniaaianarlaquorsnwa

asetVu042PanH6M042copyNt2FedEx+PRINTEDINUSA SRF

bs

Subiect to additional Charges See FedEx ServiCe Guide at fedexcom for details All eerchandise sales final

Visit us at fedexcom Or call 1800GoFedEx

18004633339

November 1 2013 101628 PM

one had misadvised him or made any misrepresentations to him Thus the record refutes Appellants claim that his plea was coerced

See also Alfred v State 71 So 3d 138 139 (Fla 4th DCA 2011) (A defendant is

bound by his sworn answers during a plea colloquy and cannot later disavow those

answers by asserting that he lied during the colloquy at counsels direction)

Davis v State 938 So 2d 555 557 (Fla 1st DCA 2006) (In the instant case the

appellant clearly states on record that he was satisfied with his attorneys services

Thus he cannot now assert that at the time of the pleas entry he had serious

doubts about his attorneys effectiveness) Rackley v State 571 So 2d 533 535

(Fla 1st DCA 1990) (affirming summary denial of the defendants rule 3850

claim of coercion and noting that on numerous occasions the court had rejected

similar claims in other cases alleging ineffective assistance of counsel or coercion

where oral or written statements made by the defendant at sentencing were to the

contrary and that Rackleys written plea contained statements that he had not been

coerced into entering his guilty plea and that he was satisfied with the services of

his attorney thus refuting his claim of coercion) Loconte v State 382 So 2d 26

26 (Fla 1st DCA 1979) (affirming summary denial of Locontes motion to set

aside his plea which he claimed was the result of coercion and promises where

there was a direct denial of coercion and promises by Loconte during his plea

colloquy)

5

Because the defendant in the instant case clearly stated under oath during his

plea colloquy that he was satisfied with the services of his attorney he was not

being pressured or coerced to accept the States offered plea and he was pleading

guilty because he was guilty and for no other reason he cannot now claim that his

plea was the product of coercion Thus the defendants claim of coercion should

have been summarily denied

Although the trial court erred in allowing the defendants trial counsel to

testify telephonically at the unnecessary evidentiary hearing over the defendants

objection this error was harmless beyond a reasonable doubt where trial counsels

testimony only provided additional evidence to refute the defendants claims See

Golden amp Cowan PA v Estate of Kosofsky 45 So 3d 986 987-88 (Fla 3d DCA

2010) (holding that the trial courts error in allowing telephonic testimony over the

appellants objection and in violation of rule 2530(d)(1) was harmless due to the

existence of other independent evidence which would have supported the trial

courts decision) SA v Dept of Children amp Family Servs 961 So 2d 1066

1067 (Fla 3d DCA 2007) (telephonic testimony permitted over mothers objection

in dependency hearing held to be harmless error because even if the telephonic

testimony was excluded there was other evidence supporting the trial courts

ruling) Quinones v Quinones 870 So 2d 108 109 (Fla 2d DCA 2003) (finding

6

no reversible error where the wife in a dissolution of marriage proceeding was

permitted over objection to testify telephonically)

We additionally reject the defendants second claim of newly discovered

evidence The newly discovered evidence which the defendant claims entitles

him to set aside his plea is the female victims later recantation of her prior sworn

testimony that the defendant slapped her after he kicked in the door of her house

This evidence was not only impeachable by the female victims prior sworn

testimony and statements to the police it would not have played any meaningful

role if the defendant had proceeded to trial The defendant admitted to kicking in

the door entering the house by force and getting into a physical fight with the

male victim These acts constitute a burglary with an assault andor a battery

Thus the defendant has failed to meet his burden to establish the prejudice prong

under Strickland v Washington 466 US 668 (1984)

Accordingly we affirm the trial courts order denying the defendants

motion for postconviction relief

Affirmed

WELLS J concurs

7

Case no 3D07-2490

Jose A Rivero v The State of Florida

SCHWARTZ Senior Judge (dissenting in part)

I disagree with the courts affirmance of the rejection of appellants Florida

Rule of Criminal Procedure 3850 claim of ineffective assistance of counsel which

was based upon the contention that he had no choice but to plead guilty because his

trial lawyer had lost his file including an allegedly exculpatory tape and the

lawyer was therefore unable to effectively defend him Trial counsel who was the

states only witness on this issue was permitted to present testimony directly

contrary to the defendants-that the file was not lost-by telephone without the

defendants consent and indeed over his specific objections There is no doubt that

this is contrary to Florida Rule of Judicial Administration 2540(d)(1) See Brown

v State 101 So 3d 381 (Fla 1st DCA 2012) Cole v Cole 86 So 3d 1175 (Fla

5th DCA 2012) MS v Dept of Children amp Families 6 So 3d 102 (Fla 4th DCA

2009)

The majority bases affirmance upon the ground of harmless error I believe

that this basis for affirmance which was not raised by the state or the trial court at

any stage of the proceedings below or on appeal is incorrect2 The majority

primarily contends that the specific claim of ineffectiveness presented by the

2 We have been unable to discover a prior instance of reversal on the bases assigned by the majority after a hearing on the merits has already been conducted

8

defendant was conclusively negated-obviating the necessity of an evidentiary

hearing at all-by the colloquy at which the plea was tendered and accepted by the

defendant in which the following occurred

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

While it is true that generalized allegations of coercion and the like may

be negated by answers like these during the plea-taking process see Cartwright v

State 112 So 3d 582 (Fla 4th DCA 2013) this is emphatically not the case when

as here claims of specific instances of attorney incapacity or ineffectiveness are

alleged and demonstrated below See Hayes v State No 2D13-1682 (Fla 2d DCA

Sept 4 2013) (holding that general acknowledgements of satisfaction with counsel

do not conclusively refute claims of ineffective assistance of counsel based on a

failure to pursue specific defense) Jones v State 846 So 2d 1224 (Fla 2d DCA

2003) (same) see also Nelson v State 996 So 2d 950 (Fla 2d DCA 2008)

9

McKune v State 953 So 2d 746 (Fla 2d DCA 2007) In my judgment these

decisions rather than the ones cited by the court are controlling on this issue

The court also finds a basis for harmlessness on the claim that the challenged

testimony was merely cumulative Again this is not the case There was no

testimony whatsoever concerning the allegedly lost file and the attendant

circumstances except for the lawyers erroneously admitted telephonic testimony

which was in turn the only basis for the trial judges rejection of the defendants

position As it said

This Court finds that the July 24 2006 hearing testimony of trial counsel Raphael Ubieta completely refutes this claim of the defendant The defendant alleges that defense counsel lost his case file however the testimonial evidence clearly refutes this claim Throughout the hearing Mr Ubieta was asked more than once if he had misplaced the defendants case file each time Mr Ubieta unequivocally responded he had the file it was not lost and he was ready to go to trial if need be When Mr Ubieta was asked whether he was prepared to try the case Mr Ubieta responded in the affirmative This Court finds the hearing testimony of Mr Ubieta credible and compelling

Since the lawyers testimony on the critical issue in the case was directly

contrary to that of the defendant and was accepted by the trial court and-perhaps

most important-because I believe that we cannot fmd that the violation of the

rules was harmless see Brown 101 So 3d at 382 (holding that the trial courts

error in allowing telephonic testimony in violation Florida Rule of Judicial

Administration 2530 was not harmless absent any other evidence to support the

10

trial courts finding) I would therefore remand the cause for the conduct of a new

evidentiary hearing on the ineffective assistance issue See Brown 101 So 3d at

381 Col_e 86 So 3d at 1175 MS 6 So 3d at 102 I agree with the courts

disposition of the newly discovered evidence point

11

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

jar

3729 1272 70 0 1 From psseseprinrandpressaanpound

Date Ac oun Nudu 4 ExpressPackageService 042nii Pack042sesapserseas

NOTE serviceerderhaschungedPicaseselectearefully

MBeintildeossoa s

(

Name Phone e n

SmdqDekyNOT

D E

conglaquo a deg wcu

oskynscu

o

I Address

03 17 Sir S e

a 27 smeroiyNDiankble

a Saeeday0ehmy

8 a e able

city State ZIP $301 S Packaging 042nusdhseans

2 Y r 31Billing R rence FedampEnvelope FadhPak aFedh

Box Fedh Tube

0

S 3 To

rnommicro Sveswamprt egm 6 Special Handling and Delivery Signature Opuons

n-arae d (

Company

_es 500 suam huvAt scra we cennadeilver to P0 boxes or PD coden rszliglultadloom

amp ID turday

No Signa re R red anare ord=hlaquoy

No a

D Signature may on or ps

e

n ct am

re o

Address Use this

AAR S OcircF19cs the HOLD location address or forcontinuationof your shipping address

a -Ob15ct

- ~ a a a a

City State ZIP

e splusmn

TotalPackages

EnisfedEx Anot karQadhcudk below

Recpient ThirdParty CreditCard

TotalWeight TotalDeclaredValuet o

ashCheck

() Easy new Peel-and-Stick airbill No pouch needed Apply airbill directly to your package See directions on back ggpf ==042042tEr$6miniaaianarlaquorsnwa

asetVu042PanH6M042copyNt2FedEx+PRINTEDINUSA SRF

bs

Subiect to additional Charges See FedEx ServiCe Guide at fedexcom for details All eerchandise sales final

Visit us at fedexcom Or call 1800GoFedEx

18004633339

November 1 2013 101628 PM

Because the defendant in the instant case clearly stated under oath during his

plea colloquy that he was satisfied with the services of his attorney he was not

being pressured or coerced to accept the States offered plea and he was pleading

guilty because he was guilty and for no other reason he cannot now claim that his

plea was the product of coercion Thus the defendants claim of coercion should

have been summarily denied

Although the trial court erred in allowing the defendants trial counsel to

testify telephonically at the unnecessary evidentiary hearing over the defendants

objection this error was harmless beyond a reasonable doubt where trial counsels

testimony only provided additional evidence to refute the defendants claims See

Golden amp Cowan PA v Estate of Kosofsky 45 So 3d 986 987-88 (Fla 3d DCA

2010) (holding that the trial courts error in allowing telephonic testimony over the

appellants objection and in violation of rule 2530(d)(1) was harmless due to the

existence of other independent evidence which would have supported the trial

courts decision) SA v Dept of Children amp Family Servs 961 So 2d 1066

1067 (Fla 3d DCA 2007) (telephonic testimony permitted over mothers objection

in dependency hearing held to be harmless error because even if the telephonic

testimony was excluded there was other evidence supporting the trial courts

ruling) Quinones v Quinones 870 So 2d 108 109 (Fla 2d DCA 2003) (finding

6

no reversible error where the wife in a dissolution of marriage proceeding was

permitted over objection to testify telephonically)

We additionally reject the defendants second claim of newly discovered

evidence The newly discovered evidence which the defendant claims entitles

him to set aside his plea is the female victims later recantation of her prior sworn

testimony that the defendant slapped her after he kicked in the door of her house

This evidence was not only impeachable by the female victims prior sworn

testimony and statements to the police it would not have played any meaningful

role if the defendant had proceeded to trial The defendant admitted to kicking in

the door entering the house by force and getting into a physical fight with the

male victim These acts constitute a burglary with an assault andor a battery

Thus the defendant has failed to meet his burden to establish the prejudice prong

under Strickland v Washington 466 US 668 (1984)

Accordingly we affirm the trial courts order denying the defendants

motion for postconviction relief

Affirmed

WELLS J concurs

7

Case no 3D07-2490

Jose A Rivero v The State of Florida

SCHWARTZ Senior Judge (dissenting in part)

I disagree with the courts affirmance of the rejection of appellants Florida

Rule of Criminal Procedure 3850 claim of ineffective assistance of counsel which

was based upon the contention that he had no choice but to plead guilty because his

trial lawyer had lost his file including an allegedly exculpatory tape and the

lawyer was therefore unable to effectively defend him Trial counsel who was the

states only witness on this issue was permitted to present testimony directly

contrary to the defendants-that the file was not lost-by telephone without the

defendants consent and indeed over his specific objections There is no doubt that

this is contrary to Florida Rule of Judicial Administration 2540(d)(1) See Brown

v State 101 So 3d 381 (Fla 1st DCA 2012) Cole v Cole 86 So 3d 1175 (Fla

5th DCA 2012) MS v Dept of Children amp Families 6 So 3d 102 (Fla 4th DCA

2009)

The majority bases affirmance upon the ground of harmless error I believe

that this basis for affirmance which was not raised by the state or the trial court at

any stage of the proceedings below or on appeal is incorrect2 The majority

primarily contends that the specific claim of ineffectiveness presented by the

2 We have been unable to discover a prior instance of reversal on the bases assigned by the majority after a hearing on the merits has already been conducted

8

defendant was conclusively negated-obviating the necessity of an evidentiary

hearing at all-by the colloquy at which the plea was tendered and accepted by the

defendant in which the following occurred

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

While it is true that generalized allegations of coercion and the like may

be negated by answers like these during the plea-taking process see Cartwright v

State 112 So 3d 582 (Fla 4th DCA 2013) this is emphatically not the case when

as here claims of specific instances of attorney incapacity or ineffectiveness are

alleged and demonstrated below See Hayes v State No 2D13-1682 (Fla 2d DCA

Sept 4 2013) (holding that general acknowledgements of satisfaction with counsel

do not conclusively refute claims of ineffective assistance of counsel based on a

failure to pursue specific defense) Jones v State 846 So 2d 1224 (Fla 2d DCA

2003) (same) see also Nelson v State 996 So 2d 950 (Fla 2d DCA 2008)

9

McKune v State 953 So 2d 746 (Fla 2d DCA 2007) In my judgment these

decisions rather than the ones cited by the court are controlling on this issue

The court also finds a basis for harmlessness on the claim that the challenged

testimony was merely cumulative Again this is not the case There was no

testimony whatsoever concerning the allegedly lost file and the attendant

circumstances except for the lawyers erroneously admitted telephonic testimony

which was in turn the only basis for the trial judges rejection of the defendants

position As it said

This Court finds that the July 24 2006 hearing testimony of trial counsel Raphael Ubieta completely refutes this claim of the defendant The defendant alleges that defense counsel lost his case file however the testimonial evidence clearly refutes this claim Throughout the hearing Mr Ubieta was asked more than once if he had misplaced the defendants case file each time Mr Ubieta unequivocally responded he had the file it was not lost and he was ready to go to trial if need be When Mr Ubieta was asked whether he was prepared to try the case Mr Ubieta responded in the affirmative This Court finds the hearing testimony of Mr Ubieta credible and compelling

Since the lawyers testimony on the critical issue in the case was directly

contrary to that of the defendant and was accepted by the trial court and-perhaps

most important-because I believe that we cannot fmd that the violation of the

rules was harmless see Brown 101 So 3d at 382 (holding that the trial courts

error in allowing telephonic testimony in violation Florida Rule of Judicial

Administration 2530 was not harmless absent any other evidence to support the

10

trial courts finding) I would therefore remand the cause for the conduct of a new

evidentiary hearing on the ineffective assistance issue See Brown 101 So 3d at

381 Col_e 86 So 3d at 1175 MS 6 So 3d at 102 I agree with the courts

disposition of the newly discovered evidence point

11

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

jar

3729 1272 70 0 1 From psseseprinrandpressaanpound

Date Ac oun Nudu 4 ExpressPackageService 042nii Pack042sesapserseas

NOTE serviceerderhaschungedPicaseselectearefully

MBeintildeossoa s

(

Name Phone e n

SmdqDekyNOT

D E

conglaquo a deg wcu

oskynscu

o

I Address

03 17 Sir S e

a 27 smeroiyNDiankble

a Saeeday0ehmy

8 a e able

city State ZIP $301 S Packaging 042nusdhseans

2 Y r 31Billing R rence FedampEnvelope FadhPak aFedh

Box Fedh Tube

0

S 3 To

rnommicro Sveswamprt egm 6 Special Handling and Delivery Signature Opuons

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Company

_es 500 suam huvAt scra we cennadeilver to P0 boxes or PD coden rszliglultadloom

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Address Use this

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a -Ob15ct

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TotalPackages

EnisfedEx Anot karQadhcudk below

Recpient ThirdParty CreditCard

TotalWeight TotalDeclaredValuet o

ashCheck

() Easy new Peel-and-Stick airbill No pouch needed Apply airbill directly to your package See directions on back ggpf ==042042tEr$6miniaaianarlaquorsnwa

asetVu042PanH6M042copyNt2FedEx+PRINTEDINUSA SRF

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18004633339

November 1 2013 101628 PM

no reversible error where the wife in a dissolution of marriage proceeding was

permitted over objection to testify telephonically)

We additionally reject the defendants second claim of newly discovered

evidence The newly discovered evidence which the defendant claims entitles

him to set aside his plea is the female victims later recantation of her prior sworn

testimony that the defendant slapped her after he kicked in the door of her house

This evidence was not only impeachable by the female victims prior sworn

testimony and statements to the police it would not have played any meaningful

role if the defendant had proceeded to trial The defendant admitted to kicking in

the door entering the house by force and getting into a physical fight with the

male victim These acts constitute a burglary with an assault andor a battery

Thus the defendant has failed to meet his burden to establish the prejudice prong

under Strickland v Washington 466 US 668 (1984)

Accordingly we affirm the trial courts order denying the defendants

motion for postconviction relief

Affirmed

WELLS J concurs

7

Case no 3D07-2490

Jose A Rivero v The State of Florida

SCHWARTZ Senior Judge (dissenting in part)

I disagree with the courts affirmance of the rejection of appellants Florida

Rule of Criminal Procedure 3850 claim of ineffective assistance of counsel which

was based upon the contention that he had no choice but to plead guilty because his

trial lawyer had lost his file including an allegedly exculpatory tape and the

lawyer was therefore unable to effectively defend him Trial counsel who was the

states only witness on this issue was permitted to present testimony directly

contrary to the defendants-that the file was not lost-by telephone without the

defendants consent and indeed over his specific objections There is no doubt that

this is contrary to Florida Rule of Judicial Administration 2540(d)(1) See Brown

v State 101 So 3d 381 (Fla 1st DCA 2012) Cole v Cole 86 So 3d 1175 (Fla

5th DCA 2012) MS v Dept of Children amp Families 6 So 3d 102 (Fla 4th DCA

2009)

The majority bases affirmance upon the ground of harmless error I believe

that this basis for affirmance which was not raised by the state or the trial court at

any stage of the proceedings below or on appeal is incorrect2 The majority

primarily contends that the specific claim of ineffectiveness presented by the

2 We have been unable to discover a prior instance of reversal on the bases assigned by the majority after a hearing on the merits has already been conducted

8

defendant was conclusively negated-obviating the necessity of an evidentiary

hearing at all-by the colloquy at which the plea was tendered and accepted by the

defendant in which the following occurred

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

While it is true that generalized allegations of coercion and the like may

be negated by answers like these during the plea-taking process see Cartwright v

State 112 So 3d 582 (Fla 4th DCA 2013) this is emphatically not the case when

as here claims of specific instances of attorney incapacity or ineffectiveness are

alleged and demonstrated below See Hayes v State No 2D13-1682 (Fla 2d DCA

Sept 4 2013) (holding that general acknowledgements of satisfaction with counsel

do not conclusively refute claims of ineffective assistance of counsel based on a

failure to pursue specific defense) Jones v State 846 So 2d 1224 (Fla 2d DCA

2003) (same) see also Nelson v State 996 So 2d 950 (Fla 2d DCA 2008)

9

McKune v State 953 So 2d 746 (Fla 2d DCA 2007) In my judgment these

decisions rather than the ones cited by the court are controlling on this issue

The court also finds a basis for harmlessness on the claim that the challenged

testimony was merely cumulative Again this is not the case There was no

testimony whatsoever concerning the allegedly lost file and the attendant

circumstances except for the lawyers erroneously admitted telephonic testimony

which was in turn the only basis for the trial judges rejection of the defendants

position As it said

This Court finds that the July 24 2006 hearing testimony of trial counsel Raphael Ubieta completely refutes this claim of the defendant The defendant alleges that defense counsel lost his case file however the testimonial evidence clearly refutes this claim Throughout the hearing Mr Ubieta was asked more than once if he had misplaced the defendants case file each time Mr Ubieta unequivocally responded he had the file it was not lost and he was ready to go to trial if need be When Mr Ubieta was asked whether he was prepared to try the case Mr Ubieta responded in the affirmative This Court finds the hearing testimony of Mr Ubieta credible and compelling

Since the lawyers testimony on the critical issue in the case was directly

contrary to that of the defendant and was accepted by the trial court and-perhaps

most important-because I believe that we cannot fmd that the violation of the

rules was harmless see Brown 101 So 3d at 382 (holding that the trial courts

error in allowing telephonic testimony in violation Florida Rule of Judicial

Administration 2530 was not harmless absent any other evidence to support the

10

trial courts finding) I would therefore remand the cause for the conduct of a new

evidentiary hearing on the ineffective assistance issue See Brown 101 So 3d at

381 Col_e 86 So 3d at 1175 MS 6 So 3d at 102 I agree with the courts

disposition of the newly discovered evidence point

11

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

jar

3729 1272 70 0 1 From psseseprinrandpressaanpound

Date Ac oun Nudu 4 ExpressPackageService 042nii Pack042sesapserseas

NOTE serviceerderhaschungedPicaseselectearefully

MBeintildeossoa s

(

Name Phone e n

SmdqDekyNOT

D E

conglaquo a deg wcu

oskynscu

o

I Address

03 17 Sir S e

a 27 smeroiyNDiankble

a Saeeday0ehmy

8 a e able

city State ZIP $301 S Packaging 042nusdhseans

2 Y r 31Billing R rence FedampEnvelope FadhPak aFedh

Box Fedh Tube

0

S 3 To

rnommicro Sveswamprt egm 6 Special Handling and Delivery Signature Opuons

n-arae d (

Company

_es 500 suam huvAt scra we cennadeilver to P0 boxes or PD coden rszliglultadloom

amp ID turday

No Signa re R red anare ord=hlaquoy

No a

D Signature may on or ps

e

n ct am

re o

Address Use this

AAR S OcircF19cs the HOLD location address or forcontinuationof your shipping address

a -Ob15ct

- ~ a a a a

City State ZIP

e splusmn

TotalPackages

EnisfedEx Anot karQadhcudk below

Recpient ThirdParty CreditCard

TotalWeight TotalDeclaredValuet o

ashCheck

() Easy new Peel-and-Stick airbill No pouch needed Apply airbill directly to your package See directions on back ggpf ==042042tEr$6miniaaianarlaquorsnwa

asetVu042PanH6M042copyNt2FedEx+PRINTEDINUSA SRF

bs

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Visit us at fedexcom Or call 1800GoFedEx

18004633339

November 1 2013 101628 PM

Case no 3D07-2490

Jose A Rivero v The State of Florida

SCHWARTZ Senior Judge (dissenting in part)

I disagree with the courts affirmance of the rejection of appellants Florida

Rule of Criminal Procedure 3850 claim of ineffective assistance of counsel which

was based upon the contention that he had no choice but to plead guilty because his

trial lawyer had lost his file including an allegedly exculpatory tape and the

lawyer was therefore unable to effectively defend him Trial counsel who was the

states only witness on this issue was permitted to present testimony directly

contrary to the defendants-that the file was not lost-by telephone without the

defendants consent and indeed over his specific objections There is no doubt that

this is contrary to Florida Rule of Judicial Administration 2540(d)(1) See Brown

v State 101 So 3d 381 (Fla 1st DCA 2012) Cole v Cole 86 So 3d 1175 (Fla

5th DCA 2012) MS v Dept of Children amp Families 6 So 3d 102 (Fla 4th DCA

2009)

The majority bases affirmance upon the ground of harmless error I believe

that this basis for affirmance which was not raised by the state or the trial court at

any stage of the proceedings below or on appeal is incorrect2 The majority

primarily contends that the specific claim of ineffectiveness presented by the

2 We have been unable to discover a prior instance of reversal on the bases assigned by the majority after a hearing on the merits has already been conducted

8

defendant was conclusively negated-obviating the necessity of an evidentiary

hearing at all-by the colloquy at which the plea was tendered and accepted by the

defendant in which the following occurred

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

While it is true that generalized allegations of coercion and the like may

be negated by answers like these during the plea-taking process see Cartwright v

State 112 So 3d 582 (Fla 4th DCA 2013) this is emphatically not the case when

as here claims of specific instances of attorney incapacity or ineffectiveness are

alleged and demonstrated below See Hayes v State No 2D13-1682 (Fla 2d DCA

Sept 4 2013) (holding that general acknowledgements of satisfaction with counsel

do not conclusively refute claims of ineffective assistance of counsel based on a

failure to pursue specific defense) Jones v State 846 So 2d 1224 (Fla 2d DCA

2003) (same) see also Nelson v State 996 So 2d 950 (Fla 2d DCA 2008)

9

McKune v State 953 So 2d 746 (Fla 2d DCA 2007) In my judgment these

decisions rather than the ones cited by the court are controlling on this issue

The court also finds a basis for harmlessness on the claim that the challenged

testimony was merely cumulative Again this is not the case There was no

testimony whatsoever concerning the allegedly lost file and the attendant

circumstances except for the lawyers erroneously admitted telephonic testimony

which was in turn the only basis for the trial judges rejection of the defendants

position As it said

This Court finds that the July 24 2006 hearing testimony of trial counsel Raphael Ubieta completely refutes this claim of the defendant The defendant alleges that defense counsel lost his case file however the testimonial evidence clearly refutes this claim Throughout the hearing Mr Ubieta was asked more than once if he had misplaced the defendants case file each time Mr Ubieta unequivocally responded he had the file it was not lost and he was ready to go to trial if need be When Mr Ubieta was asked whether he was prepared to try the case Mr Ubieta responded in the affirmative This Court finds the hearing testimony of Mr Ubieta credible and compelling

Since the lawyers testimony on the critical issue in the case was directly

contrary to that of the defendant and was accepted by the trial court and-perhaps

most important-because I believe that we cannot fmd that the violation of the

rules was harmless see Brown 101 So 3d at 382 (holding that the trial courts

error in allowing telephonic testimony in violation Florida Rule of Judicial

Administration 2530 was not harmless absent any other evidence to support the

10

trial courts finding) I would therefore remand the cause for the conduct of a new

evidentiary hearing on the ineffective assistance issue See Brown 101 So 3d at

381 Col_e 86 So 3d at 1175 MS 6 So 3d at 102 I agree with the courts

disposition of the newly discovered evidence point

11

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

jar

3729 1272 70 0 1 From psseseprinrandpressaanpound

Date Ac oun Nudu 4 ExpressPackageService 042nii Pack042sesapserseas

NOTE serviceerderhaschungedPicaseselectearefully

MBeintildeossoa s

(

Name Phone e n

SmdqDekyNOT

D E

conglaquo a deg wcu

oskynscu

o

I Address

03 17 Sir S e

a 27 smeroiyNDiankble

a Saeeday0ehmy

8 a e able

city State ZIP $301 S Packaging 042nusdhseans

2 Y r 31Billing R rence FedampEnvelope FadhPak aFedh

Box Fedh Tube

0

S 3 To

rnommicro Sveswamprt egm 6 Special Handling and Delivery Signature Opuons

n-arae d (

Company

_es 500 suam huvAt scra we cennadeilver to P0 boxes or PD coden rszliglultadloom

amp ID turday

No Signa re R red anare ord=hlaquoy

No a

D Signature may on or ps

e

n ct am

re o

Address Use this

AAR S OcircF19cs the HOLD location address or forcontinuationof your shipping address

a -Ob15ct

- ~ a a a a

City State ZIP

e splusmn

TotalPackages

EnisfedEx Anot karQadhcudk below

Recpient ThirdParty CreditCard

TotalWeight TotalDeclaredValuet o

ashCheck

() Easy new Peel-and-Stick airbill No pouch needed Apply airbill directly to your package See directions on back ggpf ==042042tEr$6miniaaianarlaquorsnwa

asetVu042PanH6M042copyNt2FedEx+PRINTEDINUSA SRF

bs

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Visit us at fedexcom Or call 1800GoFedEx

18004633339

November 1 2013 101628 PM

defendant was conclusively negated-obviating the necessity of an evidentiary

hearing at all-by the colloquy at which the plea was tendered and accepted by the

defendant in which the following occurred

Court Have you had sufficient opportunity of discussing this case with your attorney and are you satisfied with your attorneys services

Defendant Yes I am

Court Is anyone putting pressure upon you or forcing you to accept this plea today

Defendant No

Court Are you pleading guilty because you are guilty and for no other reason

Defendant Yes

While it is true that generalized allegations of coercion and the like may

be negated by answers like these during the plea-taking process see Cartwright v

State 112 So 3d 582 (Fla 4th DCA 2013) this is emphatically not the case when

as here claims of specific instances of attorney incapacity or ineffectiveness are

alleged and demonstrated below See Hayes v State No 2D13-1682 (Fla 2d DCA

Sept 4 2013) (holding that general acknowledgements of satisfaction with counsel

do not conclusively refute claims of ineffective assistance of counsel based on a

failure to pursue specific defense) Jones v State 846 So 2d 1224 (Fla 2d DCA

2003) (same) see also Nelson v State 996 So 2d 950 (Fla 2d DCA 2008)

9

McKune v State 953 So 2d 746 (Fla 2d DCA 2007) In my judgment these

decisions rather than the ones cited by the court are controlling on this issue

The court also finds a basis for harmlessness on the claim that the challenged

testimony was merely cumulative Again this is not the case There was no

testimony whatsoever concerning the allegedly lost file and the attendant

circumstances except for the lawyers erroneously admitted telephonic testimony

which was in turn the only basis for the trial judges rejection of the defendants

position As it said

This Court finds that the July 24 2006 hearing testimony of trial counsel Raphael Ubieta completely refutes this claim of the defendant The defendant alleges that defense counsel lost his case file however the testimonial evidence clearly refutes this claim Throughout the hearing Mr Ubieta was asked more than once if he had misplaced the defendants case file each time Mr Ubieta unequivocally responded he had the file it was not lost and he was ready to go to trial if need be When Mr Ubieta was asked whether he was prepared to try the case Mr Ubieta responded in the affirmative This Court finds the hearing testimony of Mr Ubieta credible and compelling

Since the lawyers testimony on the critical issue in the case was directly

contrary to that of the defendant and was accepted by the trial court and-perhaps

most important-because I believe that we cannot fmd that the violation of the

rules was harmless see Brown 101 So 3d at 382 (holding that the trial courts

error in allowing telephonic testimony in violation Florida Rule of Judicial

Administration 2530 was not harmless absent any other evidence to support the

10

trial courts finding) I would therefore remand the cause for the conduct of a new

evidentiary hearing on the ineffective assistance issue See Brown 101 So 3d at

381 Col_e 86 So 3d at 1175 MS 6 So 3d at 102 I agree with the courts

disposition of the newly discovered evidence point

11

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

jar

3729 1272 70 0 1 From psseseprinrandpressaanpound

Date Ac oun Nudu 4 ExpressPackageService 042nii Pack042sesapserseas

NOTE serviceerderhaschungedPicaseselectearefully

MBeintildeossoa s

(

Name Phone e n

SmdqDekyNOT

D E

conglaquo a deg wcu

oskynscu

o

I Address

03 17 Sir S e

a 27 smeroiyNDiankble

a Saeeday0ehmy

8 a e able

city State ZIP $301 S Packaging 042nusdhseans

2 Y r 31Billing R rence FedampEnvelope FadhPak aFedh

Box Fedh Tube

0

S 3 To

rnommicro Sveswamprt egm 6 Special Handling and Delivery Signature Opuons

n-arae d (

Company

_es 500 suam huvAt scra we cennadeilver to P0 boxes or PD coden rszliglultadloom

amp ID turday

No Signa re R red anare ord=hlaquoy

No a

D Signature may on or ps

e

n ct am

re o

Address Use this

AAR S OcircF19cs the HOLD location address or forcontinuationof your shipping address

a -Ob15ct

- ~ a a a a

City State ZIP

e splusmn

TotalPackages

EnisfedEx Anot karQadhcudk below

Recpient ThirdParty CreditCard

TotalWeight TotalDeclaredValuet o

ashCheck

() Easy new Peel-and-Stick airbill No pouch needed Apply airbill directly to your package See directions on back ggpf ==042042tEr$6miniaaianarlaquorsnwa

asetVu042PanH6M042copyNt2FedEx+PRINTEDINUSA SRF

bs

Subiect to additional Charges See FedEx ServiCe Guide at fedexcom for details All eerchandise sales final

Visit us at fedexcom Or call 1800GoFedEx

18004633339

November 1 2013 101628 PM

McKune v State 953 So 2d 746 (Fla 2d DCA 2007) In my judgment these

decisions rather than the ones cited by the court are controlling on this issue

The court also finds a basis for harmlessness on the claim that the challenged

testimony was merely cumulative Again this is not the case There was no

testimony whatsoever concerning the allegedly lost file and the attendant

circumstances except for the lawyers erroneously admitted telephonic testimony

which was in turn the only basis for the trial judges rejection of the defendants

position As it said

This Court finds that the July 24 2006 hearing testimony of trial counsel Raphael Ubieta completely refutes this claim of the defendant The defendant alleges that defense counsel lost his case file however the testimonial evidence clearly refutes this claim Throughout the hearing Mr Ubieta was asked more than once if he had misplaced the defendants case file each time Mr Ubieta unequivocally responded he had the file it was not lost and he was ready to go to trial if need be When Mr Ubieta was asked whether he was prepared to try the case Mr Ubieta responded in the affirmative This Court finds the hearing testimony of Mr Ubieta credible and compelling

Since the lawyers testimony on the critical issue in the case was directly

contrary to that of the defendant and was accepted by the trial court and-perhaps

most important-because I believe that we cannot fmd that the violation of the

rules was harmless see Brown 101 So 3d at 382 (holding that the trial courts

error in allowing telephonic testimony in violation Florida Rule of Judicial

Administration 2530 was not harmless absent any other evidence to support the

10

trial courts finding) I would therefore remand the cause for the conduct of a new

evidentiary hearing on the ineffective assistance issue See Brown 101 So 3d at

381 Col_e 86 So 3d at 1175 MS 6 So 3d at 102 I agree with the courts

disposition of the newly discovered evidence point

11

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

jar

3729 1272 70 0 1 From psseseprinrandpressaanpound

Date Ac oun Nudu 4 ExpressPackageService 042nii Pack042sesapserseas

NOTE serviceerderhaschungedPicaseselectearefully

MBeintildeossoa s

(

Name Phone e n

SmdqDekyNOT

D E

conglaquo a deg wcu

oskynscu

o

I Address

03 17 Sir S e

a 27 smeroiyNDiankble

a Saeeday0ehmy

8 a e able

city State ZIP $301 S Packaging 042nusdhseans

2 Y r 31Billing R rence FedampEnvelope FadhPak aFedh

Box Fedh Tube

0

S 3 To

rnommicro Sveswamprt egm 6 Special Handling and Delivery Signature Opuons

n-arae d (

Company

_es 500 suam huvAt scra we cennadeilver to P0 boxes or PD coden rszliglultadloom

amp ID turday

No Signa re R red anare ord=hlaquoy

No a

D Signature may on or ps

e

n ct am

re o

Address Use this

AAR S OcircF19cs the HOLD location address or forcontinuationof your shipping address

a -Ob15ct

- ~ a a a a

City State ZIP

e splusmn

TotalPackages

EnisfedEx Anot karQadhcudk below

Recpient ThirdParty CreditCard

TotalWeight TotalDeclaredValuet o

ashCheck

() Easy new Peel-and-Stick airbill No pouch needed Apply airbill directly to your package See directions on back ggpf ==042042tEr$6miniaaianarlaquorsnwa

asetVu042PanH6M042copyNt2FedEx+PRINTEDINUSA SRF

bs

Subiect to additional Charges See FedEx ServiCe Guide at fedexcom for details All eerchandise sales final

Visit us at fedexcom Or call 1800GoFedEx

18004633339

November 1 2013 101628 PM

trial courts finding) I would therefore remand the cause for the conduct of a new

evidentiary hearing on the ineffective assistance issue See Brown 101 So 3d at

381 Col_e 86 So 3d at 1175 MS 6 So 3d at 102 I agree with the courts

disposition of the newly discovered evidence point

11

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

jar

3729 1272 70 0 1 From psseseprinrandpressaanpound

Date Ac oun Nudu 4 ExpressPackageService 042nii Pack042sesapserseas

NOTE serviceerderhaschungedPicaseselectearefully

MBeintildeossoa s

(

Name Phone e n

SmdqDekyNOT

D E

conglaquo a deg wcu

oskynscu

o

I Address

03 17 Sir S e

a 27 smeroiyNDiankble

a Saeeday0ehmy

8 a e able

city State ZIP $301 S Packaging 042nusdhseans

2 Y r 31Billing R rence FedampEnvelope FadhPak aFedh

Box Fedh Tube

0

S 3 To

rnommicro Sveswamprt egm 6 Special Handling and Delivery Signature Opuons

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18004633339

November 1 2013 101628 PM

Jose A Rivero Pro-Se Appellant 1035 West 77 Street Apt - 315 Hialeah Fl 33014

SC Case No November 2 2013

DC Case No 3D07-2490 Florida Supreme Court Attn Clerks Office 500 South Duval Street Tallahassee Florida 32399-1927

Re Petitioners Jurisdictional Brief

Dear Clerk ofCourt

Please fmd enclosed the five (5) copies of Petitioners Jurisdictional Brief that were to be included with the Original Brief sent to the Court yesterday November 1 2013 (see attachment of receipt from Fed Ex) I have also included a second original with this mailing for your reference

I apologize for any inconvenience this may have caused and thank you in advance for your cooperation and understanding with regards to this matter

Sincerely

Jose A Riv

Enclosure Copy of Fed Ex Airbill

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asetVu042PanH6M042copyNt2FedEx+PRINTEDINUSA SRF

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Subiect to additional Charges See FedEx ServiCe Guide at fedexcom for details All eerchandise sales final

Visit us at fedexcom Or call 1800GoFedEx

18004633339

November 1 2013 101628 PM

3729 1272 70 0 1 From psseseprinrandpressaanpound

Date Ac oun Nudu 4 ExpressPackageService 042nii Pack042sesapserseas

NOTE serviceerderhaschungedPicaseselectearefully

MBeintildeossoa s

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Name Phone e n

SmdqDekyNOT

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conglaquo a deg wcu

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03 17 Sir S e

a 27 smeroiyNDiankble

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8 a e able

city State ZIP $301 S Packaging 042nusdhseans

2 Y r 31Billing R rence FedampEnvelope FadhPak aFedh

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rnommicro Sveswamprt egm 6 Special Handling and Delivery Signature Opuons

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_es 500 suam huvAt scra we cennadeilver to P0 boxes or PD coden rszliglultadloom

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No Signa re R red anare ord=hlaquoy

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D Signature may on or ps

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n ct am

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Address Use this

AAR S OcircF19cs the HOLD location address or forcontinuationof your shipping address

a -Ob15ct

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TotalPackages

EnisfedEx Anot karQadhcudk below

Recpient ThirdParty CreditCard

TotalWeight TotalDeclaredValuet o

ashCheck

() Easy new Peel-and-Stick airbill No pouch needed Apply airbill directly to your package See directions on back ggpf ==042042tEr$6miniaaianarlaquorsnwa

asetVu042PanH6M042copyNt2FedEx+PRINTEDINUSA SRF

bs

Subiect to additional Charges See FedEx ServiCe Guide at fedexcom for details All eerchandise sales final

Visit us at fedexcom Or call 1800GoFedEx

18004633339

November 1 2013 101628 PM