DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

AARON MOHANLAL,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D14-1835

[April 8, 2015]

Appeal of order denying rule 3.850 motion from the Circuit Court for 

the Seventeenth Judicial Circuit, Broward County; David A. Haimes, 

Judge; L.T. Case No. 04-20405CF10A.

Aaron Mohanlal, Jasper, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale 

Surber, Assistant Attorney General, West Palm Beach, for appellee. 

PER CURIAM. 

Aaron Mohanlal appeals an order summarily denying his rule 3.850 

motion for postconviction relief. We reverse the summary denial of the 

second and eighth grounds and part of the ninth ground, and otherwise 

affirm.

Mohanlal, a teacher, was charged with thirteen counts arising from a 

sexual relationship he allegedly had with one of his students. Following a 

lengthy jury trial, Mohanlal was found guilty as charged. The sole evidence 

supporting most of the offenses consisted of the victim’s uncorroborated 

testimony. The authorities became involved only after the victim found a 

flyer accusing him of molesting pets. Several of his friends and other 

students testified to procuring the photo for Mohanlal, watching Mohanlal 

create the flyer, and helping him distribute copies of it. The state argued 

Mohanlal prepared the flyers in order to get back at the victim for refusing 

to continue their sexual relationship.

Mohanlal did not testify. The defense lost the then-available 

“sandwich” in closing argument by presenting one witness, the officer who 
2

took the victim’s initial statement.1 This officer was called for the purpose 

of telling the jury that the victim initially did not mention Mohanlal’s 

involvement.

The second and eighth grounds of the postconviction motion are 

related. In his second ground, Mohanlal claimed he was entitled to a new 

trial due to the ineffective assistance of his two trial attorneys in failing to 

investigate and present exculpatory evidence and alibi witnesses at his 

trial. He described the evidence and named the witnesses, alleged they 

were available to testify at trial, and described what each witness would 

have said. Each witness or piece of evidence would have contradicted 

portions of the victim’s uncorroborated testimony. The eighth ground 

claimed his defense attorneys were ineffective both in abandoning their 

original “sandwich” trial strategy and in calling only the one officer, rather 

than also calling the named alibi witnesses and presenting the other 

evidence that could have supported Mohanlal’s claim of actual innocence. 

On this record, we find these claims were sufficient and were not refuted 

by portions of the record that were attached to the order of denial.

In his ninth ground, Mohanlal claimed ineffective assistance of counsel 

in making concessions during closing argument by admitting his 

involvement in making the flyers and acknowledging that he and the victim 

might have had a phone sex relationship. Mohanlal maintains that he 

consistently told his attorneys he neither created the flyers nor had an 

inappropriate sexual relationship with the victim. Mohanlal did not give 

the attorneys permission to admit he was guilty of any charges. He argued 

1As explained in Chamberlain v. State, 880 So. 2d 796, 797 n.1 (Fla. 5th DCA 

2004):

[A] “sandwich” opening and closing argument refers to Florida Rule 

of Criminal Procedure 3.250, which states: “a defendant offering 

no testimony in his or her own behalf, except the defendant’s own, 

shall be entitled to the concluding argument before the jury.” See 

Van Poyck v. State, 694 So. 2d 686, 697 (Fla. 1997) (defense 

counsel clearly had tactical reasons for limiting his presentation of 

evidence, it was “important to save the sandwich,” i.e., “for the 

defense to argue first and last if there’s no evidence offered aside 

from the testimony of the defendant”).

Id. Effective May 3, 2007, rule 3.250 no longer refers to closing arguments, and 

rule 3.381 now provides that the state always has the opening and rebuttal 

closing argument. See In re Amendments to the Fla. Rules of Criminal ProcedureFinal Arguments, 957 So. 2d 1164 (Fla. 2007).
3

that by admitting the possibility of phone sex, the jury might have been 

led to believe other types of misconduct occurred, as the prosecutor

emphasized the concession in rebuttal closing argument.

A postconviction motion may be denied without a hearing when 

counsel concedes a defendant’s guilt to lesser offenses, even without the 

defendant’s consent, if the record shows this was a reasonable tactical 

decision of counsel in the face of overwhelming inculpatory evidence. See, 

e.g., Florida v. Nixon, 543 U.S. 175, 190-92 (2004); Harris v. State, 768 So. 

2d 1179, 1182-83 (Fla. 4th DCA 2000). The record contains overwhelming 

evidence, from a number of witnesses, of Mohanlal’s involvement in the 

creation and distribution of the flyers.

The state’s argument and the record attachments provided an 

explanation for why the defense would have admitted Mohanlal’s 

involvement with the flyers. For example, in closing argument, defense 

counsel distinguished how Mohanlal dodged questions about the flyers in 

his police statement, but clearly denied all the sexual allegations, 

emphasizing that his limited involvement with the flyers did not mean he 

engaged in sexual acts with the victim. In fact, the defense argued, had 

he engaged in the alleged sex acts, that would have furnished a strong 

reason for him not to be involved in the flyers, which could bring the sexual 

activity to light.

But on this record, the claim of ineffective assistance for 

acknowledging Mohanlal and the victim might have had a phone sex 

relationship was not refuted. The summary record does not show any 

reasonable tactical reason for admitting to the phone sex, and the state 

never mentions it in its response to ground nine of the motion for 

postconviction relief. Accordingly, we reverse the summary denial of that 

portion of ground nine, along with grounds two and eight, and remand to 

the trial court for further proceedings on these grounds.

Affirmed in part, Reversed in part, and Remanded.

WARNER, MAY and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.