VOGDS v. STATE (2019)

Ambrose Vogds appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the order summarily denying all four claims and remand for the trial court to conduct an evidentiary hearing.

Following a jury trial, Vogds was convicted of sexual battery of a child under twelve years of age and lewd or lascivious molestation of a child under twelve years of age, and sentenced as a sexual predator to life in prison without the possibility of parole on both counts, running consecutively. This Court affirmed Vogds's direct appeal without opinion. See Vogds v. State, 231 So.3d 463 (Fla. 5th DCA 2017). Vogds then filed the instant rule 3.850 motion. He now appeals the trial court's summary denial of all four claims for relief.

In claim one, Vogds argues that his trial counsel was ineffective by asking the victim's mother if she ever suspected Vogds would harm her children, which opened the door to her damaging testimony that the victim previously told her that Vogds had “brushed” her vagina. In claim two, Vogds asserts that his trial counsel was ineffective by opening the door to inadmissible bad act evidence regarding an incident, during which Vogds kissed the victim's mother on the mouth without her consent. In claim three, Vogds submits that his trial counsel was ineffective by failing to impeach the victim with her previous inconsistent statements that Vogds did not speak to her when he touched her and that he never digitally penetrated her. Claim four alleges cumulative error.

“To be entitled to an evidentiary hearing on a claim of ineffective assistance, the defendant must allege specific facts that are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant.” Jones v. State, 845 So.2d 55, 65 (Fla. 2003). When, as here, there was no evidentiary hearing, a court must accept the factual allegations made by the defendant to the extent that they are not conclusively refuted by the record. Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000). Our review of the postconviction court's decision to summarily deny the motion without an evidentiary hearing is de novo. Owen v. State, 986 So.2d 534, 543 (Fla. 2008).

We conclude that the postconviction court erred in summarily denying each claim in the rule 3.850 motion. The record does not conclusively refute these claims. Based on the circumstances of this case, it seems that no additional court records could be attached to the denial order that would conclusively refute the claims. Accordingly, an evidentiary hearing is necessary to resolve these claims. The court must then decide whether Vogds has established that his counsel's performance was deficient and if he was prejudiced as a result. See Grosvenor v. State, 874 So.2d 1176, 1178 (Fla. 2004).

REVERSED and REMANDED.

PER CURIAM.

ORFINGER, COHEN and WALLIS, JJ., concur.