         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-836
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TYRONE D. WALLACE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                    ___________________________

On appeal from the Circuit Court for Hamilton County.
Andrew J. Decker, III, Judge.

                          August 24, 2018


           OPINION ON MOTION FOR WRITTEN OPINION

B.L. THOMAS, C.J.

    We have before us Appellant's motion for written opinion.
We grant Appellant’s motion and, accordingly, withdraw our
former opinion of May 23, 2018, and substitute this opinion in its
place.

     Appellant challenges the lower court’s “Order Denying
Petition to Recall, Vacate, and Set Aside the Court’s Order of
March 10, 2011 Based on Fraud on the Court.” Appellant alleges
that the postconviction court’s order denying relief was procured
by fraudulent evidence.
     Appellant was arrested on March 31, 2004, and charged by
information with Home Invasion Robbery While Armed, and
Kidnapping. After a jury trial, Appellant was found guilty of
both charges.
     At the May 4, 2006 sentencing hearing, Appellant’s counsel,
Mr. Hunt, argued that the State untimely filed its notice that it
was seeking to sentence Appellant under section 775.082, Florida
Statutes, as a Prison Releasee Reoffender (“PRR”), because it was
filed after trial, after the jury had been discharged. The
sentencing court stated that the PRR statute does not expressly
require the State to give notice of its intent to seek PRR status
prior to trial, with the court noting, “I wish you were correct. I
think it’s a miracle that we don’t have to let you know that
prior . . . .” Mr. Hunt argued that the law may have changed in
that regard, based on decisions in felony DUI cases where courts
had ruled that, once a defendant was convicted of DUI, he was
entitled to a jury determination on whether he had prior
convictions for purposes of sentencing. Mr. Hunt argued that,
analogous to felony DUI cases, Appellant was entitled to a jury
determination on the issue of prior convictions in order to seek
PRR status. The trial court disagreed, stating that the PRR
statute does not require notice before the jury is discharged,
stating, “[t]hey can do it, they don’t have to notify anybody until
after it’s over and then say, oh, yes, we noticed him as a prison
releasee reoffender.”
    After counsel for the State read portions of the PRR statute,
Mr. Hunt stated, “Judge, I’m not here to contest what the statute
says. We’re here for a sentencing hearing and the State must
produce – produce evidence.” As required by the PRR statute,
Appellant was sentenced to 30 years in prison for the charge of
home invasion robbery and life in prison on the charge of
kidnapping.
     After the judgment and sentence were affirmed per curiam, 1
Appellant filed a motion for postconviction relief pursuant to
Florida Rule of Criminal Procedure 3.850, claiming nine grounds
for relief. Pertinent here, Ground Four of Appellant’s motion
alleged ineffective assistance of counsel. Appellant claimed he

    1 Wallace v. State, 951 So. 2d 837 (Fla. 1st DCA 2007)
(Table).

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specifically asked Mr. Hunt whether he would be subject to
sentencing under the PRR statute, and Mr. Hunt incorrectly
informed him that if the State did not give notice prior to trial of
its intent to seek PRR designation, he would not be subject to
PRR. Appellant alleged that he turned down the State’s offer of a
ten-year prison sentence based on counsel’s misinformation, and
stated he would not have gone to trial had the possibility of a life
sentence been correctly communicated to him.
     The postconviction court held an evidentiary hearing on
Ground Four of Appellant’s motion on March 2, 2011. Mr. Hunt
testified that the State had offered Appellant a ten-year plea deal,
and Appellant rejected it, stating that he was innocent and
wanted to go to trial. Mr. Hunt testified that he had two
separate discussions with Appellant before the sentencing
hearing regarding the possible consequences of a guilty verdict at
trial, and he made written notes contemporaneously with these
discussions. The notes were admitted into evidence without
objection. Mr. Hunt read the notes into the record:
         A: Okay. Top left of the page is a notation of the
    date, 3/3/06. And the time 9:15, and it doesn’t say a.m.,
    but it was a.m., and more or less top center of the page
    is the name, Tyrone Wallace. Under that in brackets is
    state’s offer, colon, bracket, 10 years, closed bracket.
    Below that entry is a notation I explained above to
    defendant, he wants trial. And following that, just
    following that is a notation, I explained that if he is
    classified as PRR, he will receive a mandatory life
    sentence. Defendant understands.
         ....
    Next paragraph 4-3-06, 9:08, defendant arrived eight
    minutes late.      Spoke with defendant again and
    reminded him of State’s plea offer, 10 years DOC. I
    explained that he appeared to qualify as a prison
    releasee reoffender and will face a mandatory minimum
    life imprisonment if convicted of either offense.
    Defendant says he is innocent and will not consider a
    plea bargain.


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     Mr. Hunt testified that he discussed with Appellant the
notice that was required if the State intended to seek PRR: “It
was my understanding that the notice did not have to be filed in
advance of trial. That it was filed in advance of sentencing, but
not necessarily in advance of trial.”
     Mr. Hunt testified that he never advised Appellant that PRR
would not apply to him due to a lack of written notice prior to
trial. When asked if he argued at sentencing that PRR should
not apply because the notice was not timely filed, Mr. Hunt
testified, “I don’t know. You’ll have to refer to the sentencing
transcript. Sounds like something I would have said, but I can’t
remember saying it. 2 Mr. Hunt testified that he knew that the
case law is to the contrary, but he may have made the argument
anyway.
     Appellant testified at the evidentiary hearing that Mr. Hunt
informed him the State offered him a ten-year plea deal, but
never told him he would be facing life in prison. Appellant
testified that Mr. Hunt told him he was subject to sentencing as
an habitual violent offender but it was not mandatory, that he
could receive the fifteen-year mandatory minimum, and that the
judge could choose to sentence him to ten years if he found
Appellant was not a threat to society. Appellant testified that he
specifically asked Mr. Hunt whether he was subject to PRR, and
Mr. Hunt told him he would be if the State gave timely notice.
Appellant testified that Mr. Hunt advised him he would be able
to earn gain time, and that information factored into his decision
to go to trial.
    The postconviction court found that Mr. Hunt’s
contemporaneous notes were accurate and not falsified; therefore,
Mr. Hunt had discussed with Appellant the possibility of life

    2 The transcript of the sentencing hearing was not available
at the evidentiary hearing on Appellant’s rule 3.850 motion.
Appellant’s postconviction counsel stated the transcript was not
in the court file, and, as the moving party, Appellant bore the
burden of producing the transcript. The evidentiary hearing
proceeded without the transcript. However, the transcript was
provided in the record for this appeal.

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imprisonment. The court noted that the information by which
Appellant was charged indicated that both charges were
punishable by life in prison, and the court did not find it credible
that Mr. Hunt would not have discussed the possibility of life
imprisonment with Appellant when the potential sentence was
listed on the information. The court found that Mr. Hunt’s
argument at sentencing that the PRR notice was untimely could
be viewed as an attorney arguing one theory of law on behalf of
his client, but it did not prove that he told Appellant he could not
be sentenced to life if the PRR notice was not filed before trial.
The postconviction court reiterated these findings in its
March 10, 2011 order denying Appellant’s motion for
postconviction relief.
     On October 25, 2016, Appellant filed a “Petition to Recall,
Vacate, and Set Aside the Court’s Order of March 10, 2011 Based
on Fraud on the Court.” Appellant alleged that, because the
transcripts of the 2006 sentencing hearing were now available, he
could prove Mr. Hunt’s deficient performance and establish that
Mr. Hunt’s testimony at the 2011 evidentiary hearing constituted
fraud on the court. Specifically, Appellant alleged that Mr. Hunt
was testifying falsely when he said he understood that the PRR
notice did not have to be given prior to trial and that he never
advised Appellant that PRR would not apply to him due to the
State’s failure to notice PRR before trial. Appellant alleged that
2006 sentencing hearing transcripts, which were not available at
the 2011 postconviction evidentiary hearing, established that
Mr. Hunt believed in 2006 that PRR had to be noticed before
trial, and his statements that he still advised Appellant that it
did not need to be noticed before trial were false.
     On February 3, 2017, the lower court held an evidentiary
hearing on Appellant’s Petition to Vacate. With the transcript of
the sentencing hearing now available, Mr. Hunt testified that he
had argued at the 2006 sentencing hearing that the State’s PRR
notice was untimely, but he did not advise Appellant that it
would not apply. Mr. Hunt testified that this was not a false
statement of the law, as he was arguing that the sentencing court
should rely on felony DUI cases where a jury determination on
prior convictions was required for sentencing; thus, applying the
standard from felony DUI cases, the PRR should not be applied to
Appellant because it was not noticed until after the jury was
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discharged. Mr. Hunt testified that this argument was a strategy
to represent Appellant zealously, and he believed the argument
was well taken and entirely appropriate. Mr. Hunt further
testified that he informed Appellant that he faced a life sentence
under PRR.
    Mr. Hunt testified that the notes of his 2006 discussions with
Appellant that were admitted at the 2011 evidentiary hearing
were made contemporaneously with his original conversations
with Appellant, were not created after the fact, and were not
fraud on the court.
     The lower court found there was no showing that Mr. Hunt’s
handwritten notes admitted into evidence at the 2011 evidentiary
hearing were not made contemporaneously with his discussions
with Appellant in 2006 prior to trial. The court found that
Mr. Hunt testified honestly and accurately at the 2011
evidentiary hearing, and found that, when Mr. Hunt argued at
the 2006 sentencing hearing that PRR should have been noticed
before trial, he was making the best policy argument he could in
favor of Appellant, and not demonstrating a misunderstanding of
the law. The lower court denied Appellant’s petition to vacate the
2011 order. Appellant now challenges the court’s denial of his
petition.
                            Analysis
    A lower court’s decision regarding a claim of fraud on the
court is reviewed for an abuse of discretion. Suarez v. Benihana
Nat’l of Fla. Corp., 88 So. 3d 349, 351 (Fla. 3d DCA 2012).
     Any judgment or order procured from any court by the
practice of fraud or deception may, in appropriate proceedings, be
set aside at any time. State v. Burton, 314 So. 2d 136, 138 (Fla.
1975). Fraud on the court is defined as “an egregious offense
against the integrity of the judicial system and is more than a
simple assertion of facts in a pleading which might later fail for
lack of proof.” Wells Fargo Bank, N.A. v. Reeves, 92 So. 3d 249,
252 (Fla. 1st DCA 2012).
     The authority to dismiss actions for fraud “‘should be used
‘cautiously and sparingly,’ and only upon the most blatant
showing of fraud, pretense, collusion, or other similar wrong

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doing.’” Id. (quoting Granados v. Zehr, 979 So. 2d 1155, 1157
(Fla. 5th DCA 2008)).
    As defined in Cox. v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA
1998):
         The requisite fraud on the court occurs where “it
    can be demonstrated, clearly and convincingly, that a
    party has sentiently set in motion some unconscionable
    scheme calculated to interfere with the judicial system's
    ability impartially to adjudicate a matter by improperly
    influencing the trier of fact or unfairly hampering the
    presentation of the opposing party's claim or defense.”
(Quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.
1989) (emphasis added)). Thus, to succeed in his petition to
vacate the 2011 order based on fraud on the court, Appellant had
to show by clear and convincing evidence that the testimony at
the 2017 evidentiary hearing proved that facts found to be true at
the 2011 evidentiary hearing were “basically false.” See Booker v.
State, 503 So. 2d 888, 889 (Fla. 1987).
    In State v. Mischler, 488 So. 2d 523, 525 (Fla. 1986), the
Florida Supreme Court described the requirements for clear and
convincing evidence:
         “Clear and convincing evidence requires that the
    evidence must be found to be credible; the facts to which
    the witnesses testify must be distinctly remembered; the
    testimony must be precise and explicit and the
    witnesses must be lacking in confusion as to the facts in
    issue. The evidence must be of such weight that it
    produces in the mind of the trier of fact a firm belief and
    conviction, without hesitancy, as to the truth of the
    allegation sought to be established.”
(Quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA
1983)).
     Appellant argues that the 2011 order on his motion for
postconviction relief was procured by fraud, because Mr. Hunt
testified falsely when he stated that he understood the State did
not have to give notice of its intent to seek PRR before trial, and

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that he never advised Appellant that PRR would not apply to
him, because the State had not filed notice of PRR prior to trial.
He further argues that Mr. Hunt’s notes of his conversations with
Appellant were falsified to the extent that they indicated that
Mr. Hunt never advised him that PRR applied. In support,
Appellant points to Mr. Hunt’s argument at the 2006 sentencing
hearing that, although he did not contest what the PRR statute
said, he believed the court should apply the standard established
for felony DUI cases, where, after conviction, a separate jury
determination was required to establish whether the defendant
had prior convictions.
     Appellant has not established fraud by clear and convincing
evidence. Mr. Hunt’s argument at the 2006 sentencing hearing
was a policy argument offered to get the best possible sentencing
for Appellant.      This does not establish that Mr. Hunt
misunderstood the PRR notice requirement; rather, the argument
indicates that Mr. Hunt was requesting the court to apply a
standard for policy reasons, even when he understood that the
statute did not expressly require that standard.          See R.
Regulating Fla. Bar pmbl. (“As an advocate, a lawyer zealously
asserts the client's position under the rules of the adversary
system”). This argument does not “produce in the mind” a “firm
belief and conviction, without hesitancy,” that Mr. Hunt
misunderstood the PRR notice requirements, misadvised
Appellant based on that misunderstanding, and then gave false
testimony and produced falsified notes contrary to that advice.
    AFFIRMED.
WOLF and RAY, JJ., concur.

                 _____________________________

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


Tyrone D. Wallace, pro se, Appellant.


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Pamela Jo Bondi, Attorney General, Holly N. Simcox and Sharon
S. Traxler, Assistant Attorneys General, Tallahassee, for
Appellee.




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