       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          MARIA FELICIANO,
                             Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D17-3506

                           [February 6, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mindy F. Solomon, Judge; L.T. Case No. 12-
012311CF10A.

  Hilliard Moldof of Hilliard E. Moldof, P.A., Fort Lauderdale, and Kelsey
Moldof of Moldof Law, P.A., Fort Lauderdale, for appellant.

   Ashley B. Moody, Attorney General, Tallahassee, and Richard Valuntas,
Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

    We reverse the circuit court’s order denying postconviction relief
following an evidentiary hearing and remand for a new trial.
    Appellant was convicted of one count of lewd or lascivious molestation.
The victim was her son. Now an adult, the son testified that his mother
fondled him while he bathed between 2004 and 2006 when he was around
ten or eleven years old. He also testified that, at a different time, his
mother open mouth kissed him. Appellant denied that the incidents
occurred and suggested that her son had a motive to fabricate the story—
there was family friction and her son had considered trying to become
emancipated when he was fifteen. The jury found appellant guilty as
charged. The trial judge sentenced appellant to eight years in prison
followed by ten years of probation.       Appellant’s direct appeal was
unsuccessful.
    Appellant’s motion for postconviction relief was based on her lawyer’s
failure to call two witnesses, appellant’s sister and a long-time family
friend. Both witnesses had lived with appellant and her children. The
testimony of both witnesses was favorable to appellant. The family friend
would have directly contradicted the victim’s claim in a deposition that
appellant had salaciously kissed him in front of the family friend, who then
chastised appellant. At trial, the defense lawyer stipulated that the sister
should be precluded from testifying for violating the witness sequestration
rule; the lawyer did not seek a hearing on the rule violation to determine
any prejudice to the state, nor did she argue for a lesser sanction.
    At the hearing below, the state commendably stipulated to defense
counsel’s ineffectiveness for failing to call the two witnesses to testify at
trial. We have carefully reviewed the record. This was a credibility case,
without any other tangible evidence, and the witnesses would have
significantly undermined the victim’s testimony and provided a
counterpoint to the state’s case. Under Strickland v. Washington, 466 U.S.
668, 687 (1984), we find counsel’s errors to be “so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.” There is a
reasonable probability that “but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694.
   Reversed and remanded for a new trial.

GROSS, MAY and DAMOORGIAN, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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