          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D18-1853
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ANDREW M. GOMEZ,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
James Daniel, Judge.

                         July 22, 2019

                 ON MOTION FOR CLARIFICATION

JAY, J.

    Appellant’s Motion for Clarification is denied, but we
withdraw our previous opinion and substitute the following
opinion in its place.

    Appellant, Andrew M. Gomez, appeals from an order denying
his petition for writ of habeas corpus, which the trial court
construed as a postconviction motion brought pursuant to Florida
Rule of Criminal Procedure 3.850. For the reasons discussed
below, we affirm.
                                  I.

    Appellant pleaded guilty to two counts of second-degree
murder in return for a sentencing range of 40 years to life on
each count. He was sentenced to consecutive life sentences. This
Court affirmed his convictions and sentences. See Gomez v. State,
83 So. 3d 713 (Fla. 1st DCA 2012).

     In 2017, Appellant filed the instant petition for writ of
habeas corpus, arguing that his guilty plea should be vacated
because there was no factual basis for the charges. He alleged
that there was no preexisting enmity between Appellant and the
victims to support the depraved mind element of second-degree
murder, and that there was no proof to tie him to the victims’
deaths. While Appellant acknowledged that this claim could have
been raised in his previous postconviction motions, he asserted
that his claim should be considered on the merits to prevent a
manifest injustice. The trial court dismissed the petition with
prejudice, construing it as a successive and untimely rule 3.850
motion. The court also found the claim to be legally meritless.

                                  II.

     On appeal, Appellant does not contest that his claim is
untimely and successive. Rather, he contends that the lack of a
factual basis for his guilty plea rendered it involuntary, and the
failure to correct this issue would result in a manifest injustice.

      This claim is not only procedurally barred, it is legally
meritless. “The main purpose in ascertaining a factual basis for a
plea is to prevent a defendant from mistakenly pleading to the
wrong offense.” State v. Sion, 942 So. 2d 934, 937 (Fla. 3d DCA
2006). “It is not a matter of weighing the evidence but only to
fulfill the purpose of [Florida Rule of Criminal Procedure 3.172,]
which is to make certain that a defendant does not plead guilty to
an offense of which he could not possibly be guilty.” Monroe v.
State, 318 So. 2d 571, 573 (Fla. 4th DCA 1975). “The inquiry
which the court should conduct in order to determine there is a
factual basis for the plea of guilty need not be a ‘mini-trial’ . . . .
[T]he court may satisfy itself . . . [by] statements and admissions
made by the defendant, or by his counsel, or by the prosecutor . . .


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.” Farr v. State, 124 So. 3d 766, 778 (Fla. 2012) (quoting Monroe,
318 So. 2d at 573)).

    Section 782.04(2), Florida Statutes (2009), defines second-
degree murder as “[t]he unlawful killing of a human being, when
perpetrated by an act imminently dangerous to another and
evincing a depraved mind regardless of human life, although
without any premeditated design to effect the death of any
particular individual.” As the Fifth District explained in
Sandhaus v. State, 200 So. 3d 112 (Fla. 5th DCA 2016),

    [c]onduct that is imminently dangerous to another and
    evincing a depraved mind is characterized by an act or
    series of acts that: (1) a person of ordinary judgment
    would know is reasonably certain to kill or do serious
    bodily injury to another, and (2) is done from ill will,
    hatred, spite, or an evil intent, and (3) is of such a
    nature that the act itself indicates an indifference to
    human life.

Id. at 114-15 (quoting State v. Montgomery, 39 So. 3d 252, 255-56
(Fla. 2010)).

     This case arose when an 18-month-old child was found
floating in a community pool. Appellant was found standing in
the pool nearby, and initially refused to exit the pool when
ordered to do so. The child’s 18-year-old mother was discovered at
the bottom of the pool. The water where the second victim was
found was only three feet deep. Appellant—who was the adult
victim’s long-time friend—had scratches on his neck and chest.

     When the police later questioned Appellant, he indicated
that he, the child’s mother, and the child were the only people at
the pool that morning. He explained that he was holding the
child in the pool and moving the child through the water in a way
which prompted the child to tell him to stop. The mother entered
the pool to take the child away from Appellant. He fought with
the mother, pushing her until she drowned. Appellant dropped
the child into the pool during the fight. He specifically admitted
to killing the child’s mother.



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     After the struggle, Appellant saw the child floating in the
water. When asked why he didn’t attempt to help the child, he
stated that he didn’t know why he didn’t assist. Appellant also
had no answer for why he didn’t give the child back to her
mother. The medical examiner determined that both victims died
by drowning.

     During the plea hearing, a factual basis was elicited, where
the State explained that Appellant had drowned both victims,
was found in the pool with their bodies, and had admitted that he
was responsible for their deaths during his police interview. The
State also noted that when Appellant was evaluated for sanity at
the time of the offenses, the State’s expert had found him to be
sane and confirmed the facts uncovered during the police
investigation, which indicated that Appellant was responsible for
the victims’ deaths. Defense counsel stated that he had no
objection or exception to the factual basis for purposes of the plea.

     Given this information, there was clearly a factual basis for
the guilty plea. This factual basis was presented by the
prosecutor during the plea hearing and supported by the arrest
report. It was further reinforced by the evidence presented during
sentencing. Under these circumstances, Appellant’s claim is
conclusively refuted by the record. See Farr, 124 So. 3d at 778; see
also Saint Aime v. State, 723 So. 2d 874, 875 (Fla. 3d DCA 1998)
(“As to defendant’s claim that there was no factual basis for the
plea, the arrest affidavit was a part of the record and, contrary to
defendant’s argument, it sufficiently sets forth a factual basis for
the charge of second-degree murder . . . .”).

    AFFIRMED.

B.L. THOMAS and BILBREY, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andrew M. Gomez, pro se, Appellant.

Ashley Moody, Attorney General, and Anne C. Conley, Assistant
Attorney General, Tallahassee, for Appellee.




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