          IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED

FELIX CASTRO,

              Appellant,

 v.                                                       Case No. 5D17-3102

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed March 23, 2018

3.850 Appeal from the Circuit Court
for Orange County,
Mark S. Blechman, Judge.

Felix Castro, Mayo, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Lori N. Hagan, Assistant
Attorney General, Daytona Beach, for
Appellee.


PER CURIAM.

       Felix Castro appeals the summary denial of his Florida Rule of Criminal Procedure

3.850 motion for postconviction relief. Castro raised eight grounds for relief in his motion.

We affirm, without further discussion, the postconviction court’s denial of Grounds One

through Seven. As to Ground Eight, for the reasons explained below, we reverse for the

lower court to either hold an evidentiary hearing or attach additional court records to its

order to conclusively refute this claim.
       Castro was convicted after trial of trafficking in hydrocodone in excess of

twenty-eight grams. Construing the trial evidence in the light most favorable to the State,

a confidential informant working under the direct supervision of the Drug Enforcement

Agency purchased 2000 hydrocodone pills from Castro at a prearranged meeting in the

parking lot of a tattoo parlor for the sum of $4000. In Ground Eight of his motion, Castro

alleged that his trial counsel rendered ineffective assistance because he did not call

Castro’s wife to testify at trial as an alibi witness. Castro states that he was prejudiced by

counsel’s failure because his wife was available and willing to testify at trial and, if called,

would have said that she was with Castro on both the day the drug transaction was

negotiated and then on the day that it was consummated and that Castro was not present

for either event, as she and Castro “never left each other’s company.” Castro averred

that if trial counsel had called his wife to testify, the jury “would have found her to be more

credible than the paid felon [confidential] informant who (testified against Castro and) was

being compensated for his role in [Castro’s] arrest,” and the jury would have found him

not guilty.

       In summarily denying this claim, the postconviction court attached to its order a

portion of the trial transcript where the following exchange occurred:

              THE COURT: Mr. Castro, I ask every defendant at this point
              in time: Are you satisfied with the services that you received
              from [trial counsel]?

              [THE DEFENDANT:1] Yes.

              THE COURT: Is there anything that you told him to do and
              he didn’t do?



       1The transcript inadvertently indicates that counsel responded to this question.
Contextually, it is clear that Castro responded.

                                               2
              THE DEFENDANT: No, Sir.

In the denial order, the court found that this dialogue sufficiently “refute[d] [Castro’s] claim

that he wanted counsel to call his wife as an alibi witness.”

       “The failure to call a witness can constitute ineffective assistance of counsel if the

witness might be able to cast doubt on the defendant’s guilt.” Gutierrez v. State, 27 So.

3d 192, 194 (Fla. 5th DCA 2010) (citing Ford v. State, 825 So. 2d 358, 360–61 (Fla. 2002);

Spellers v. State, 993 So. 2d 1117, 1118 (Fla. 5th DCA 2008)). Here, Castro set forth a

facially sufficient claim of ineffective assistance of counsel because he alleged the identity

of the potential witness, the substance of the witness’s testimony, how the omission of

the testimony prejudiced him, and that the witness was available for trial. See Spellers,

993 So. 2d at 1118. A defendant is entitled to an evidentiary hearing on a claim that

counsel was ineffective for failing to call a witness to testify unless the motion is

conclusively refuted by the record or is otherwise procedurally barred. Gutierrez, 27 So.

3d at 194 (citing Jacobs v. State, 880 So. 2d 548, 550–51 (Fla. 2004)); Spellers, 993 So.

2d at 1118.

       We conclude that the record attached to the order under review does not

conclusively refute Castro’s claim that his trial counsel was ineffective for failing to call

Castro’s wife as an alibi witness. As to the court’s first question, a defendant’s statement

of satisfaction with counsel in response to a generic inquiry from the trial court is

“generally insufficient to conclusively refute a claim that counsel was ineffective for failing

to call a witness.” Evans v. State, 210 So. 3d 704, 705 n.1 (Fla. 5th DCA 2017) (citing

Law v. State, 847 So. 2d 599, 600–01 (Fla. 5th DCA 2003)). Admittedly, the court’s

second inquiry to Castro of whether there was anything that Castro wanted counsel to do




                                               3
          IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED

FELIX CASTRO,

              Appellant,

 v.                                                       Case No. 5D17-3102

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed March 23, 2018

3.850 Appeal from the Circuit Court
for Orange County,
Mark S. Blechman, Judge.

Felix Castro, Mayo, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Lori N. Hagan, Assistant
Attorney General, Daytona Beach, for
Appellee.


PER CURIAM.

       Felix Castro appeals the summary denial of his Florida Rule of Criminal Procedure

3.850 motion for postconviction relief. Castro raised eight grounds for relief in his motion.

We affirm, without further discussion, the postconviction court’s denial of Grounds One

through Seven. As to Ground Eight, for the reasons explained below, we reverse for the

lower court to either hold an evidentiary hearing or attach additional court records to its

order to conclusively refute this claim.
