IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JUAN PANTOJA, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D17-430
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed September 5, 2017.
An appeal from the Circuit Court for Gadsden County.
Barbara K. Hobbs, Judge.
Juan Pantoja, pro se, Appellant.
Pamela Jo Bondi, Attorney General, Julian E. Markham, Assistant Attorney General,
Tallahassee, for Appellee.
PER CURIAM.
Appellant, Juan Pantoja, who was convicted of sexual battery on a child under
twelve by a defendant less than eighteen and lewd or lascivious molestation of a
child under twelve by a defendant eighteen or older seeks review of two orders
denying three of his postconviction claims that were filed pursuant to Florida Rule
of Criminal Procedure 3.850. For the following reasons, we reverse the orders on
appeal and remand for further proceedings as set forth herein.
In Ground 1, Appellant alleged that trial counsel was ineffective by advising
him to reject a twenty-year plea offer. The postconviction court summarily denied
the claim, finding that it was conclusively refuted by the record. While we disagree
that the record refutes the claim, summary denial of Ground 1 was proper given that
the claim was facially insufficient. See Morgan v. State, 991 So. 2d 835, 840 (Fla.
2008) (holding that the appellant’s claim that trial counsel was ineffective in
advising him to reject a plea offer because counsel felt she could win at trial was
facially insufficient where the appellant failed to allege some specific deficiency on
counsel’s part), receded from on other grounds in Alcorn v. State, 121 So. 3d 419,
422 (Fla. 2013); see also Drakus v. State, 219 So. 3d 979, 982 (Fla. 1st DCA 2017)
(reversing the portion of the trial court’s order summarily denying the appellant’s
claim that trial counsel was ineffective for advising him to reject a fifteen-year plea
offer because counsel was certain that a newly assigned prosecutor would offer a
better deal, not because the claim was conclusively refuted by the record as found
by the trial court, but because the claim was facially insufficient). On remand,
Appellant should be given the opportunity to amend his claim within a reasonable
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period of time. See Spera v. State, 971 So. 2d 754, 761 (Fla. 2007) (holding that a
defendant who files a legally insufficient 3.850 motion for failing to meet pleading
requirements should be allowed at least one opportunity to amend the motion).
Because the postconviction court did not deny relief on Ground 1 based upon facial
insufficiency, Appellant’s failure to raise Spera on appeal does not foreclose reversal
on this basis. See Ferris v. State, 996 So. 2d 228, 229 (Fla. 1st DCA 2008) (“The
trial court did not deny the claim on the basis of facial insufficiency, and, as such,
the appellant could not have been aware of the application of Spera to this issue.”).
Turning to Ground 3, in which Appellant alleged that trial counsel was
ineffective in failing to alert the trial court that a juror was sleeping during critical
testimony, the postconviction court denied relief following an evidentiary hearing.
In doing so, the postconviction court relied in part upon the “court’s file” in finding
that trial counsel alerted the trial court of the situation and that the juror at issue
represented that he was listening with his head down. However, no portion of the
record was attached to the trial court’s order addressing Ground 3. Nor is that
portion of the trial transcript contained anywhere else in the record on appeal. We,
therefore, reverse as to Ground 3 and remand for the postconviction court to attach
that portion of the record to its order showing that relief as to Ground 3 was properly
denied. See Reynolds v. State, 99 So. 3d 459, 486 (Fla. 2012) (noting that a
postconviction court’s factual findings made following an evidentiary hearing are
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reviewed under the competent, substantial evidence standard of review).
With respect to Ground 4, in which Appellant alleged that trial counsel was
ineffective in failing to object to an erroneous jury instruction, the postconviction
court summarily denied the claim, finding that the issue was “specifically raised”
during the sentencing hearing. We disagree. While the portion of the sentencing
hearing attached to the postconviction court’s order showed that trial counsel argued
that the jury returned inconsistent verdicts, there are no record attachments showing
what instructions were read to the jury and whether trial counsel objected to some
lesser included offenses but not others. We, therefore, reverse as to Ground 4 and
remand for the postconviction court to either attach to its order portions of the record
that conclusively refute Appellant’s claim or conduct an evidentiary
hearing. See McLin v. State, 827 So. 2d 948, 954 (Fla. 2002) (explaining that to
uphold the summary denial of a postconviction claim, the claim must either be
facially invalid or conclusively refuted by the record).
REVERSED and REMANDED for further proceedings.
LEWIS, RAY, and JAY, JJ., CONCUR.
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