         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D16-5091
                 _____________________________

JEREMIAH SAMUEL CUOMO,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Bay County.
James B. Fensom, Judge.

                        October 15, 2018


WINOKUR, J.

     Jeremiah Cuomo was convicted of aggravated battery and
shooting into an occupied dwelling. Cuomo appealed, arguing
that the trial court erred in denying his motion to suppress
incriminating statements made to his mother in jail during a
conversation secretly recorded by the police. We affirmed, finding
no improper police conduct or reasonable subjective expectation
of privacy in this conversation. Cuomo v. State, 98 So. 3d 1275,
1281-82 (Fla. 1st DCA 2012). Cuomo filed a postconviction motion
arguing, inter alia, that his trial counsel was ineffective for not
presenting his mother as a witness at the suppression hearing.
The trial court summarily denied this ground, Cuomo now
appeals, and we reverse for an evidentiary hearing. 1

                                 I.

     At his suppression hearing, Cuomo testified that he invoked
his right to remain silent and right to counsel, and was held until
he was informed that his mother came to see him. Cuomo stated
that he was led to believe the conversation would be private, but
was not explicitly told so. Testifying officers denied telling Cuomo
or his mother that their conversation would be private, and
stated that Cuomo’s mother initiated the conversation by
requesting a visit. In denying the motion to suppress, the trial
court stated that who initiated the visit was important, it had
“not heard from [Cuomo’s] mother,” the only evidence was that
the mother came to the jail and requested visitation, and
concluded that there was no evidence of improper police conduct.
Our affirmance was based in part on the facts that the police
“scrupulously respected” Cuomo’s rights and did not orchestrate
the recorded conversation, but “simply accommodated the
mother’s request to visit [Cuomo].” Id. at 1281 (distinguishing
this case from the improper police conduct apparent in State v.
Calhoun, 479 So. 2d 241, 243 (Fla. 4th DCA 1985)).

     In Cuomo’s postconviction motion, he asserted that his
mother would have testified that the police initiated the visit by
offering her the opportunity to visit Cuomo without her asking,
and that the police specifically told her that the visit would be
private. Because this claim is not legally insufficient or
conclusively refuted by the record, Cuomo is entitled to an
evidentiary hearing. 2 See Franqui v. State, 59 So. 3d 82, 95–96
(Fla. 2011).


    1 We affirm the trial court’s denial as to Cuomo’s arguments
that his trial counsel was ineffective for misadvising him as to his
maximum sentence, failing to strike a biased juror, failing to
move for a mistrial during the State’s cross-examination of
Cuomo, and for cumulative error.
    2Cuomo also asserted that he overheard a police officer tell
his mother that the conversation would be private, but this is
                                 2
                                II.

     It should be noted that Cuomo also appealed the denial of a
different postconviction claim, which was denied after an
evidentiary hearing, as well as the claim involving his mother,
which the trial court denied with no evidentiary hearing.
Regarding Cuomo’s appeal of this summarily-denied claim, the
State indicated in its answer brief that it did not “intend to file
an answer brief on this issue, unless directed by this Court
pursuant to Rule 9.141(b)(2)(C).” This constitutes a misreading of
Florida Rule of Appellate Procedure 9.141(b)(2), and does not set
forth an adequate reason to refuse to brief this issue.

     Before 2014, Rule 9.141(b)(2) was entitled “Summary Grant
or Denial of Motion Without Evidentiary Hearing.” Fla. R. App.
P. 9.141(b)(2) (2013). This rule set forth special appellate rules,
which provided for a limited record and limited briefing, and
applied whenever the trial court denied the motion without any
evidentiary hearing. If the trial court held an evidentiary
hearing, this rule did not apply, even if the defendant was
appealing the denial of a claim for which the court did not hold
an evidentiary hearing. See Williams v. State, 24 So. 3d 1252,
1252 n.1 (Fla. 1st DCA 2009). Instead, Rule 9.141(b)(3) (entitled
“Grant or Denial of Motion after Evidentiary Hearing”), which
contains essentially routine appellate rules regarding the record
and briefing, applied to appeals of such mixed petitions. Id.

    This rule was made even clearer in 2014, when the Supreme
Court amended the title of Rule 9.141(b)(2) to read “Summary
Grant or Denial of All Claims Raised in a Motion Without
Evidentiary Hearing.” Fla. R. App. P. 9.141(b)(2) (2014)
(emphasis supplied). See In re Amendments to Fla. Rules of
Appellate Procedure, 183 So. 3d 245, 255 (Fla. 2014). It is now




conclusively refuted by the record of the suppression hearing
where Cuomo detailed every reason he believed the conversation
would be private, and omitted this statement.

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beyond dispute that Rule 9.141(b)(2) applies only when the trial
court holds no evidentiary hearing at all. 3

     In short, the issue regarding the summarily-denied claim
here is not governed by Rule 9.141(b)(2), including its provision
that the appellee need not file a brief unless directed by this
Court. Instead, the issue here is governed by Rule 9.141(b)(3),
which requires an answer brief “as prescribed by rule 9.210.” Fla.
R. App. P. 9.141(b)(3)(C). When a postconviction appeal falls
under Rule 9.141(b)(3), the State’s refusal to brief an issue
regarding a summarily-denied claim constitutes a forfeiture of
the State’s right to respond to the appellant’s brief.

    AFFIRMED in part, REVERSED in part, and REMANDED for an
evidentiary hearing.

RAY and BILBREY, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Michael Ufferman of Michael Ufferman Law Firm, P.A.,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Robert Quentin
Humphrey, Assistant Attorney General, Tallahassee, for
Appellee.


    3  The title of Rule 9.141(b)(3) was also amended to specify
that it applies when a motion is denied “after an Evidentiary
Hearing was Held on One of More Claims.” In re Amendments to
Fla. Rules of Appellate Procedure, 183 So. 3d at 255. This new
title clarifies that it applies to an appeal of any claim after an
evidentiary hearing is held, regardless of whether the court held
an evidentiary hearing on the specific claim raised.

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