         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-3988
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EDUARDO RODRIGUEZ-LOPEZ,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Duval County.
Steven B. Whittington, Judge.

                       February 15, 2019


PER CURIAM.

    AFFIRMED.

BILBREY and JAY, JJ., concur; WINOKUR, J., concurs with opinion.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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WINOKUR, J., concurring.

    I agree with the majority that we should affirm the order
below, but I write separately because I disagree with some of the
reasoning offered by the trial court below in support of the order.

     Rodriguez-Lopez was charged with first-degree murder and
pleaded guilty to second-degree murder in exchange for a
sentence between twenty and one-half years and fifty years. He
later filed a motion to withdraw that plea alleging that his
counsel had been ineffective for failing to advise him of the “heat
of passion” defense prior to entering the plea. Rodriguez-Lopez
alleged that his wife was having an affair, and that once he
discovered this, he “lost control,” later awaking in the hospital
with no memory of what happened. Rodriguez-Lopez claimed that
he told counsel these facts, but that counsel told him he had no
defense, in spite of Rodriguez-Lopez’s assertion that the heat-of-
passion defense was available to him.

     The trial court found that the record conclusively refuted
this claim because it showed that Rodriguez-Lopez had
threatened to kill his wife nine months before the murder, and
because he swore in his plea colloquy that he had been advised of
all possible defenses, that he had fully discussed them with
counsel, and that he concurred with counsel on the decision not to
go to trial. The court noted that “[p]revious threats to kill a
victim are ‘totally inconsistent with [a] claim of a heat of passion
killing,’” citing Stimus v. State, 886 So. 2d 996, 999 (Fla. 5th DCA
2004), and that a defendant who “enters a plea and swears that
he is satisfied with his counsel’s advice, [] may not later attack
counsel’s effectiveness for failure to investigate or defend a
charge,” citing Clift v. State, 43 So. 3d 778, 779 (Fla. 1st DCA
2010). I disagree that either reason constituted a basis to deny
the claim without a hearing.

     First, the fact that the State could have demonstrated that
Rodriguez-Lopez had previously threatened to kill his wife, while
relevant, does not necessarily demonstrate that summary denial
was appropriate. * “[A] sudden event that would have suspended

    * If “the files and records in the case conclusively show that
the defendant is not entitled to relief” on a postconviction claim,
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the exercise of judgment in an ordinary reasonable person,” who
“would have lost normal self-control and would have been driven
by a blind and unreasoning fury” without a “reasonable amount
of time for a reasonable person to cool off” may provide a basis for
a heat-of-passion defense. Fla. Std. Jury Instr. (Crim.) 7.2.
Nothing about this defense excludes the possibility of prior
violence between the perpetrator and the victim. Stimus, which
concerned remedy for a discovery violation, does not suggest
otherwise. 886 So. 2d at 997.

     The effect of Rodriguez-Lopez’s acknowledgement at the plea
hearing that he had been advised of all possible defenses and
discussed them with counsel presents a more difficult question. It
can be logically contended that this acknowledgement
conclusively refutes the claim that counsel did not advise
Rodriguez-Lopez of a particular defense. However, it seems harsh
and irrational to impute knowledge of a particular defense, even
with such an acknowledgement, when Rodriguez-Lopez alleges
that he was unaware of its existence at the time of the plea. The
Third District recently split over such a dispute. Sosataquechel v.
State, 246 So. 3d 497 (Fla. 3d DCA 2018). The majority there
found that an acknowledgement at a plea hearing that the
defendant discussed defenses with his attorney and was satisfied
with his advice “does not adequately resolve” his claim that
counsel failed to advise him of his right to claim self-defense. Id.
at 499. In contrast, the minority opinion found that such an
acknowledgement conclusively refuted the defendant’s claim. Id.
at 500 (Luck, J., concurring in part and dissenting in part).

     In this case, I believe we do not have to resolve this question,
because the record conclusively refutes the claim that Rodriguez-
Lopez acted in the heat of passion. The order under review
included records that showed that on the day of the murder,
Rodriguez-Lopez waited across the parking lot in a place where
he could see the victim’s apartment, that he brought the murder
weapon (a large knife) with him, and that he was seen “stalking

then the claim “shall be summarily denied on the merits without
a hearing.” Fla. R. Crim. P. 3.850(f)(4).



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the victim at her workplace and on her way to work.” While past
violence against the victim may not have conclusively refuted a
heat-of-passion defense, certainly these facts do. See, e.g., Spencer
v. State, 645 So. 2d 377, 381 (Fla. 1994) (holding that evidence
that the defendant parked away from the victim’s house on the
day of the killing, wore plastic gloves during attack, and carried a
steak knife in his pocket, was inconsistent with a heat-of-passion
killing). For this reason, I concur in the conclusion that the record
conclusively refutes Rodriguez-Lopez’s claim that counsel was
ineffective for failing to advise him of the heat-of-passion defense.

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Eduardo Rodriguez-Lopez, pro se, Appellant.

Ashley B. Moody, Attorney General, and Virginia Harris,
Assistant Attorney General, Tallahassee, for Appellee.




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