DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

EDWIN JOSE GARRIDO,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D13-3739

[April 15, 2015]

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

the Nineteenth Judicial Circuit, St. Lucie County; Robert E. Belanger, 

Judge; L.T. Case No. 562008CF001155A.

Jeffrey H. Garland of Jeffrey H. Garland, P.A., Fort Pierce, for appellant.

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

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

GROSS, J.

We reverse an order denying a motion for postconviction relief after an 

evidentiary hearing and remand to the circuit court for a new trial. We 

conclude that trial counsel was ineffective for failing to pursue an alibi 

defense once the prosecutor disclosed a new range of offense dates after 

the jury had been sworn.

Edwin Garrido (“defendant”) was charged with kidnapping and sexual 

battery. In a supplemental answer to defendant’s demand for discovery, 

the State initially disclosed that the offense occurred “on or about 

November 3, 2007, at approximately 12 noon.” In response, defendant 

provided the State with his notice of alibi and listed four witnesses who 

supported his claim that at the time of the alleged offense, he was working 

at the St. Lucie County International Airport. 

The jury was sworn and told to return for trial later that week. On the 

morning of trial, before opening arguments, the prosecutor told the court 

that the November 3rd offense date was incorrect. She moved to amend 

the information, recognizing it would prejudice the defense. The judge 
- 2 -

gave the defense the option of going to trial with the jury that had been 

selected or asking for another remedy, such as a mistrial without jeopardy 

attaching or a continuance. The judge refused to reduce defendant’s bond,

so he could not be released pending trial. The defense attorney did not 

move for a continuance or a mistrial but objected to the amendment.

The judge gave counsel time to interview the victim, who had not 

previously been available for deposition. Later, over defense counsel’s 

objection that it nullified his alibi defense, the trial court granted the 

State’s motion to amend the information by oral interlineation to allege 

that the incident occurred between November 5 and 9, 2007. Defense 

counsel said he was ready for trial and that he had alibi witnesses. 

The victim testified at trial that when she first came to this country she 

lived with defendant’s sister. She considered defendant a brother or 

friend. At the time of the incident, she lived with her fiancé and their infant 

daughter. The incident happened at around noon on a weekday, while the 

fiancé was at work. The victim was not sure of the exact date, but she 

recalled it was during the week before her family moved to a different 

residence, which occurred Saturday, November 10th. She testified that 

defendant came to her house unexpectedly and made unwanted advances 

toward her. She and defendant fought, and he dragged her into the 

bedroom and forced her to have intercourse. No physical evidence 

connected defendant to the crime. The victim said nothing about the 

incident to anyone until the following month, when she told defendant’s 

sister. Over a month and a half after the incident, the victim first spoke 

to the police. 

Even though defense counsel had told the judge that alibi witnesses 

would testify, the defense rested without presenting a case. The jury 

convicted defendant of kidnapping and sexual battery. He was sentenced 

to thirty years in prison for the kidnapping and a concurrent term of fifteen 

years for the sexual battery.

One of the issues raised on direct appeal was that the trial court erred 

by allowing the State to amend the information during trial, where the 

defense was prejudiced. This Court affirmed based on the principle of 

“invited error,” because defense counsel rejected the trial judge’s offer of a 

mistrial or a continuance to prepare a defense to the newly-disclosed range 

of dates. Garrido v. State, 47 So. 3d 341 (Fla. 4th DCA 2010) (citing 

Farinas v. State, 569 So. 2d 425, 429 n.7 (Fla. 1990)). 

In his Florida Rule of Criminal Procedure 3.850 motion, defendant 

raised nine grounds, including that his trial attorney provided ineffective 
- 3 -

assistance of counsel by failing to investigate defenses as to the amended 

dates and failing to discuss with defendant the benefit of doing so. 

At the evidentiary hearing on the postconviction motion, the defense

called six witnesses, including defendant and trial counsel.

Supervisors and co-workers testified and provided documentation that 

between November 5 and 9, 2007, defendant was working with them 

hanging drywall at a job in Boca Raton, from 8:00 a.m. to 5:00 p.m. each 

day. The essence of their testimony was that during the dates in question 

defendant could not have attacked a woman at noon in Port St. Lucie, 

where the offense allegedly took place. The drive took between two and

two and a half hours, depending on traffic. The defense lawyer never asked 

these witnesses whether defendant was working on the amended dates. 

Had he done so, they could have pulled their records to document 

defendant’s presence on the job.

Initially, defendant went to trial with alibi witnesses for November 3rd, 

so the change in dates took him by surprise. Spanish was his primary 

language, and he had some difficulty communicating with his lawyer. 

After the State amended the date of the offense, defense counsel never 

asked defendant about an alibi for the new range of dates. The lawyer told 

defendant he was ready for the trial. Had defendant fully understood what 

was happening, he could have asked his lawyer to take the judge’s offer of 

a continuance and prepare an alibi for the new dates.

Defense counsel testified that he never filed a motion for a bill of 

particulars under Florida Rule of Criminal Procedure 3.140(n), relying 

instead upon the prosecutor’s representation about the date of the offense. 

He did not depose the victim prior to trial because the prosecutor told him 

she could not locate her. The evening before the evidentiary portion of the 

trial was to commence, the prosecutor called to say that she had located 

the victim and was changing the dates of the crime. Defense counsel said 

he did not discuss with defendant the advisability of conducting further 

investigation, nor did he ask defendant if he had an alibi for the new time 

period. He did not explain to defendant the detriment of not taking the 

judge’s offer of a continuance. Defense counsel remembered that 

defendant was frustrated with being in jail. It was tough to explain to him 

what was happening after counsel had worked so hard to prepare his alibi 

defense for the original November 3rd date. 

Defense counsel testified that his main concern was to preserve what 

he perceived as an error in allowing the dates to be changed after the jury 

had been sworn. At the time, he did not understand that by refusing to 
- 4 -

accept the judge’s remedy of a mistrial or a continuance, he ended up 

waiving the very error he sought to preserve. With the benefit of hindsight, 

he now realized that it was reckless to go forward with the trial.

The trial court denied the postconviction motion by citing the wrong 

evidentiary standard. The court said that a postconviction movant has the 

burden to “establish his entitlement to relief by clear and convincing 

evidence.” It concluded defense counsel was not ineffective for electing to 

proceed with the trial where the client had consented. 

The standard of Strickland v. Washington, 466 U.S. 668 (1984), governs 

claims of ineffective assistance of counsel:

To establish deficient performance, a person challenging a 

conviction must show that “counsel’s representation fell below 

an objective standard of reasonableness.” 466 U.S. at 688, 

104 S.Ct. 2052. A court considering a claim of ineffective 

assistance must apply a “strong presumption” that counsel’s 

representation was within the “wide range” of reasonable 

professional assistance. Id., at 689, 104 S.Ct. 2052. The 

challenger’s burden is to show “that counsel made errors so 

serious that counsel was not functioning as the ‘counsel’ 

guaranteed the defendant by the Sixth Amendment.” Id., at 

687, 104 S.Ct. 2052.

With respect to prejudice, a challenger must demonstrate 

“a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have 

been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Id., at 

694, 104 S.Ct. 2052. It is not enough “to show that the errors 

had some conceivable effect on the outcome of the 

proceeding.” Id., at 693, 104 S.Ct. 2052. Counsel’s errors 

must be “so serious as to deprive the defendant of a fair trial, 

a trial whose result is reliable.” Id., at 687, 104 S.Ct. 2052. 

Harrington v. Richter, 562 U.S. 86, 104 (2011).

In assessing prejudice under Strickland, the question is not 

whether a court can be certain counsel’s performance had no 

effect on the outcome or whether it is possible a reasonable 

doubt might have been established if counsel acted differently. 

. . . Instead, Strickland asks whether it is “reasonably likely”

the result would have been different. [466 U.S.] at 696, 104 
- 5 -

S.Ct. 2052. This does not require a showing that counsel’s 

actions “more likely than not altered the outcome,” but the 

difference between Strickland’s prejudice standard and a 

more-probable-than-not standard is slight and matters “only 

in the rarest case.” Id., at 693, 697, 104 S.Ct. 2052. The 

likelihood of a different result must be substantial, not just 

conceivable. Id., at 693, 104 S.Ct. 2052. 

Harrington, 562 U.S. at 111-12.

Defense counsel performed deficiently in this case by pursuing a 

legally-flawed tactic. Counsel believed that rejecting a mistrial or 

continuance would preserve the error of the last minute change in offense 

dates. Counsel deprived his client of a fair trial by rejecting the remedies 

offered by the court and by not questioning defendant and the alibi 

witnesses concerning defendant’s whereabouts during the new dates. 

Defendant presented evidence from alibi witnesses and established at the 

evidentiary hearing a reasonable probability of a different result sufficient 

to undermine confidence in the outcome of the trial. Accordingly, we 

reverse the denial of the postconviction motion and remand for a new trial. 

Reversed and remanded for a new trial.

GERBER and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.