       Third District Court of Appeal
                                State of Florida

                           Opinion filed February 4, 2015.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D13-2640
                          Lower Tribunal No. 12-7730 A
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                                 Aurea Santos,
                                     Appellant,

                                         vs.

                             The State of Florida,
                                     Appellee.


     An Appeal from the Circuit Court for Miami-Dade County, Samantha Ruiz-
Cohen, Judge.

     Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public
Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney
General, for appellee.


Before SUAREZ, LAGOA, and SCALES, JJ.

      PER CURIAM.

      Appellant, Aurea Santos (“Santos”), appeals from the trial court’s order

summarily denying her Motion for Post-Conviction Relief filed pursuant to Florida
Rule of Criminal Procedure 3.850. Because we find that the trial court erred in

denying Santos’s Motion for Post-Conviction Relief without first holding an

evidentiary hearing, we reverse the trial court’s order and remand for further

proceedings.

I.    FACTUAL AND PROCEDURAL HISTORY

      Santos was charged with one count of dealing in stolen property1 and one

count of unlawfully purchasing regulated metals property.2 Santos pled guilty to

both counts. As a condition of the plea, the trial court withheld adjudication and

sentenced her to three years on probation.

      After entering the plea, Santos filed a Motion for Post-Conviction Relief

requesting the right to withdraw her guilty plea pursuant to Rule 3.850. Santos

asserted that trial counsel had not properly advised her of the elements for the

charged offense. In summarily denying the motion, the trial court attached a

transcript of the plea colloquy to its written order. The trial court determined that

Santos knowingly entered the plea, that she understood the nature of the charges

against her and the consequences of the plea, and that Santos waived her right to

require the State prove its case against her beyond a reasonable doubt.


1 Section 812.019(1), Florida Statutes (2012), states: “Any person who traffics in,
or endeavors to traffic in, property that he or she knows or should know was stolen
shall be guilty of a felony of the second degree, punishable as provided in ss.
775.082, 775.083, and 775.084.”
2 Section 538.26(4), Florida Statutes (2012), reads in relevant part: “It is unlawful

for a secondary metals recycler to do or allow any of the following acts . . . (4)
[p]urchase regulated metals property . . . .”
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II.   ANALYSIS

      We conclude that the trial court erred in summarily denying Santos’s Motion

for Post-Conviction relief based on ineffective assistance of trial counsel. In

Jacobs v. State, 880 So. 2d 548 (Fla. 2004), the Florida Supreme Court explained

that “if the trial court finds that the motion is facially sufficient, that the claim is

not conclusively refuted by the record, and that the claim is not otherwise

procedurally barred, the trial court should hold an evidentiary hearing to resolve

the claim.” Id. at 551. After reviewing the plea colloquy attached to the trial

court’s order, we conclude that the colloquy does not conclusively refute Santos’s

allegation of ineffective assistance of counsel.

      Because the attached plea colloquy to the trial judge’s order does not refute

Santos’s sworn claim regarding ineffective assistance of her defense counsel, the

trial court must conduct an evidentiary hearing. See, e.g., State v. Leroux, 689 So.

2d 235, 237-38 (Fla. 1996) (reversing for evidentiary hearing because plea

colloquy and record did not conclusively refute defendant’s post-conviction relief

claim); Bowers v. State, 862 So. 2d 772, 773-74 (Fla. 4th DCA 2003) (same);

Fisher v. State, 824 So. 2d 1050, 1051-52 (Fla. 3d DCA 2002) (same); Lewis v.

State, 795 So. 2d 1061, 1061-62 (Fla. 4th DCA 2001) (same); Rensoli v. State, 718

So. 2d 1278, 1279 (Fla. 3d DCA 1998) (same); Kit v. State, 654 So. 2d 1235, 1236

(Fla. 2d DCA 1995) (same).



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      Accordingly, on remand, Santos is entitled to an evidentiary hearing to

determine if her allegation is true that trial counsel failed to correctly advise her

regarding the elements of the charged offense. If Santos proves her allegation of

ineffective assistance of counsel, she should be given the opportunity to withdraw

her plea and proceed to trial.

      REVERSED AND REMANDED.




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