           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                 _____________________________

                         No. 1D18-0895
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OMAR LIVINGSTON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Leon County.
Angela C. Dempsey, Judge.

                         August 9, 2019


WOLF, J.

     Omar Livingston appeals a final order summarily denying
his Florida Rule of Criminal Procedure 3.850 motion in which he
raised multiple claims attacking his judgment and sentence
based on ineffective assistance of counsel. We agree with
appellant that the trial court erred in summarily denying his
claim that counsel was ineffective for misadvising him concerning
the maximum penalty he faced and for failing to call his
codefendant as a witness. Accordingly, we reverse and remand for
further proceedings. We, however, have concerns regarding the
present requirements of alleging facially sufficient claims
pursuant to rule 3.850, Florida Rules of Criminal Procedure, and
therefore certify a question of great public importance.
                              FACTS

     A jury found appellant guilty of being a convicted felon in
possession of a firearm, and this court affirmed his judgment and
sentence. The charge arose from the traffic stop of a vehicle
driven by appellant’s brother, Dominic Livingston. Appellant was
a passenger in the vehicle, and the arresting officer testified that
he saw appellant leaning towards the glove compartment
immediately after the stop. Officers found a firearm in the glove
compartment, and the State charged both occupants with
offenses related to firearm possession. Dominic’s charges were
pending at the time of appellant’s trial.

          FAILURE TO ADVISE AS TO MAXIMUM PENALTY

     Appellant argues in his rule 3.850 motion that he would have
accepted the State’s plea offer if he had been correctly advised by
his attorney concerning the maximum penalty he faced. He
alleged the prosecutor made an offer on the record prior to trial,
the court would have accepted the offer, and the sentence would
have been less severe than the sentence the trial court ultimately
imposed. The postconviction court attached a portion of the jury
selection transcript to its order summarily denying appellant’s
3.850 motion, showing the trial court informed appellant the
lowest permissible sentence under the law was 69 months prison
with a 3-year mandatory minimum.

    However, the record attachment contains no information
that conclusively refutes appellant’s assertion that his attorney
provided him incorrect legal advice as to the maximum legal
sentence. Therefore, we must reverse and remand the summary
denial with instructions for the court to attach portions of the
record that conclusively refute appellant’s claim or to hold an
evidentiary hearing on this ground. See Bush v. State, 257 So. 3d
633 (Fla. 1st DCA 2018) (holding the court erred in summarily
denying a defendant’s 3.850 motion because the record
attachments did not conclusively refute the defendant’s assertion
that his defense counsel failed to correctly advise him regarding
the maximum penalties associated with his charges).




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  INEFFECTIVENESS BASED ON FAILURE TO CALL CODEFENDANT

     In his 3.850 motion, appellant alleged that his attorney was
also ineffective for failing to call his brother Dominic, the driver
of the vehicle, as a witness. Appellant asserts that Dominic would
have testified that appellant had no knowledge of the firearm,
and this testimony would have called into question the arresting
officer’s testimony and may have resulted in appellant’s
acquittal. The postconviction court found that appellant’s claim
was legally insufficient only because Dominic was a codefendant
who was also charged with the same offense. Therefore, the court
reasoned that he would not have testified in such a way as to
incriminate himself.

     “[A] facially sufficient motion alleging ineffective assistance
of counsel for failure to investigate and to interview a potential
witness should set forth the following: ‘(1) the identity of the
prospective witness; (2) the substance of the witness’ testimony;
and (3) an explanation as to how the omission of this evidence
prejudiced the outcome of the trial.’” Rangel-Pardo v. State, 879
So. 2d 19, 20 (Fla. 2d DCA 2004) (quoting Robinson v. State, 659
So. 2d 444, 445 (Fla. 2d DCA 1995)); see also Highsmith v. State,
617 So. 2d 825, 826 (Fla. 1st DCA 1993).

     The same test applies when the potential witness is a
codefendant or a potential codefendant. Penton v. State, 2D17-
3765, 2018 WL 6817149, at *3 (Fla. 2d DCA Dec. 28, 2018); Black
v. State, 230 So. 3d 166 (Fla. 5th DCA 2017). If a defendant
makes a facially sufficient claim, the postconviction court may
not summarily deny the claim based on the assumption that the
codefendant would invoke the Fifth Amendment. Here, the court
did just that. We agree with the Fifth District’s analysis:

    First, although the post-conviction court concluded that
    Snead would not have testified because of self-
    incrimination concerns, nothing in the record supports
    this conclusion. See Forte v. State, 189 So. 3d 1043, 1044
    (Fla. 2d DCA 2016) (“the State argues that because the
    codefendant had not been sentenced when Forte
    proceeded to trial the codefendant could have invoked
    his Fifth Amendment right. However, nothing in the

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    limited record before us supports the State’s
    contention.”); see also Echevarria v. State, 976 So. 2d 84,
    85 (Fla. 3d DCA 2008).

Black, 230 So. 3d at 168.

     Here, nothing in the record indicates that Dominic
Livingston ever asserted his Fifth Amendment rights. Thus, the
court’s reason for summarily denying the claim concerning failure
to call the codefendant was legally insufficient.

     As to the assertion regarding failure to call the codefendant,
we are constrained to reverse by Highsmith v. State, 617 So. 2d
825 (Fla. lst DCA 1993). However, a defendant who alleges
counsel failed to call a codefendant who would have testified in a
manner that would have exonerated the defendant should be
required to allege how the defendant knows the codefendant
would have testified in this manner. This requirement would
clarify that the witness was actually available and willing to give
such testimony, and whether trial counsel was truly ineffective.

     It is simply too easy for a convicted defendant to make vague
and very possibly speculative allegations concerning how a
codefendant would testify. Requiring a defendant to amend his
sworn allegations to specify how he knows the codefendant would
have testified in a certain manner places very little additional
burden on the defendant. The State, however, has significant
interests in requiring a defendant to make specific allegations
concerning the basis of a defendant’s knowledge that the
codefendant would have testified in an exculpatory manner.

    This specificity assures: (1) the defendant actually has a
reasonable belief that the witness will testify in a particular
manner; (2) if the defendant is making false allegations, they
may be subject to perjury charges; and (3) the defendant will not
have to be transported from prison at the taxpayers’ expense for a
needless hearing that will utilize scarce judicial hearing time. In
addition, absent specific allegations, there is no way to accurately
determine the prejudice to a defendant, whether counsel’s actions
were truly deficient, or even whether there is a reasonable basis
to assume that the codefendant was available to testify. If we

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were free to do so, we would require appellant to amend the
motion pursuant to Spera v. State, 971 So. 2d 754 (Fla. 2007).

     As such, we REVERSE and REMAND with directions for the
court either to attach portions of the record that conclusively
refute appellant’s assertions or to hold an evidentiary hearing on
both grounds.

     Due to the concerns we have raised, we also certify the
following question as being of great public importance:

    DOES A CRIMINAL DEFENDANT HAVE TO ALLEGE A BASIS
    FOR KNOWING AN UNCALLED WITNESS WOULD TESTIFY
    FAVORABLY IN ORDER TO PRESENT A LEGALLY SUFFICIENT
    CLAIM IN A RULE 3.850 MOTION?

MAKAR and M.K. THOMAS, JJ., concur.

                 _____________________________

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


Omar Livingston, pro se, Appellant.

Ashley Moody, Attorney General, and Trisha Meggs Pate,
Assistant Attorney General, Tallahassee, for Appellee.




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