        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                       JOSE BRIBIESCA TAFOLLA,
                              Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D14-1971

                               [April 15, 2015]

   Appeal of an order denying rule 3.850 motion from the Circuit Court
for the Fifteenth Judicial Circuit, Palm Beach County; Karen M. Miller,
Judge; L.T. Case No. 502008CF001536A.

   Jose Bribiesca Tafolla, Raiford, pro se.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A.
Egber, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   Jose Bribiesca Tafolla appeals the trial court’s order summarily
denying his motion for postconviction relief under Florida Rule of
Criminal Procedure 3.850. We affirm, without comment, the court’s
denial of seven of appellant’s claims, but reverse the denial as to claim
two and remand for further proceedings.

   On appeal from a summary denial of a rule 3.850 motion, this Court
must reverse “unless the [postconviction] record shows conclusively that
the appellant is entitled to no relief.” Fla. R. App. P. 9.141(b)(2)(D). The
record before us does not conclusively refute claim two, which alleges
ineffective assistance in trial counsel’s advice regarding appellant’s
decision not to testify at trial. See, e.g., Lott v. State, 931 So. 2d 807, 819
(Fla. 2006); Loudermilk v. State, 106 So. 3d 959, 960 (Fla. 4th DCA 2013)
(recognizing that Lott “mandates consideration of both the voluntariness
of any waiver as well as the reasonableness of counsel’s advice not to
testify”). Counsel may be ineffective in advising defendant not to testify
at trial, where the defendant’s proposed testimony would have been the
only evidence establishing a legally-recognized defense to the charges.
See, e.g., Loudermilk, 106 So. 3d at 960 (citing Visger v. State, 953 So. 2d
741, 744 (Fla. 4th DCA 2007)).

   Appellant was convicted after a jury trial of two counts of driving
under the influence causing serious bodily injury. We affirmed the
convictions and sentences on direct appeal. See Bribiesca-Tafolla v.
State, 93 So. 3d 364 (Fla. 4th DCA 2012). A key issue at trial was
whether appellant drove the truck that resulted in the victims’ serious
injury following a multi-car accident. The truck was registered to
appellant’s wife, and she told police that appellant had left alone driving
the truck several hours earlier.       Appellant and the truck’s other
occupant, Raphael Gomez, were ejected as a result of the crash. The
occupants of the other two cars involved in the crash did not see who
was driving the truck. The police were unable to identify who was
driving based on the locations of where appellant and Mr. Gomez were
found after the crash. An investigating officer testified that at the
hospital, following the issuance of Miranda warnings, appellant admitted
to driving the truck that caused the crash.

   Appellant’s defense at trial was that Mr. Gomez drove the truck and
that appellant did not admit to driving at the time of the crash, contrary
to the officer’s testimony. Through claim two, appellant argues that
counsel was ineffective in misadvising him about the need for his trial
testimony to support his defense and about whether a letter he had
written apologizing to the victims could be used against him.

   His allegations are facially sufficient to state a prima facie claim for
ineffective assistance of counsel. Appellant points out that counsel
stated in opening that the evidence would show Mr. Gomez drove the
truck. Counsel told the jury that Mr. Gomez drove because appellant
was tired and wanted to sleep. However, Mr. Gomez did not testify and
was not expected to testify at trial. Appellant argues that without
testimony explaining how and why Mr. Gomez was driving, there was no
evidentiary support for his theory of defense. Appellant notes that in
closing, the state asked the jury whether appellant had furnished the
promised testimony. Appellant’s motion details the testimony he would
have furnished. He also contends that his testimony was needed to
explain the circumstances surrounding his admissions to police.

    Appellant’s claim regarding the need for his testimony to support the
only defense argued at trial is not refuted by the record. On remand, the
trial court may either attach additional portions of the record, if any,
refuting appellant’s allegations or hold an evidentiary hearing on this
claim.

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  Affirmed in part, Reversed in part, and Remanded with directions.

DAMOORGIAN, C.J., GROSS and GERBER, JJ., concur.

                          *        *        *

  Not final until disposition of timely filed motion for rehearing.




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