DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOSE BRIBIESCA TAFOLLA,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D14-1971

[April 15, 2015]

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

for the Fifteenth Judicial Circuit, Palm Beach County; Karen M. Miller, 

Judge; L.T. Case No. 502008CF001536A.

Jose Bribiesca Tafolla, Raiford, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. 

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

PER CURIAM.

Jose Bribiesca Tafolla appeals the trial court’s order summarily 

denying his motion for postconviction relief under Florida Rule of 

Criminal Procedure 3.850. We affirm, without comment, the court’s 

denial of seven of appellant’s claims, but reverse the denial as to claim 

two and remand for further proceedings.

On appeal from a summary denial of a rule 3.850 motion, this Court 

must reverse “unless the [postconviction] record shows conclusively that 

the appellant is entitled to no relief.” Fla. R. App. P. 9.141(b)(2)(D). The 

record before us does not conclusively refute claim two, which alleges 

ineffective assistance in trial counsel’s advice regarding appellant’s 

decision not to testify at trial. See, e.g., Lott v. State, 931 So. 2d 807, 819 

(Fla. 2006); Loudermilk v. State, 106 So. 3d 959, 960 (Fla. 4th DCA 2013) 

(recognizing that Lott “mandates consideration of both the voluntariness 

of any waiver as well as the reasonableness of counsel’s advice not to 

testify”). Counsel may be ineffective in advising defendant not to testify 

at trial, where the defendant’s proposed testimony would have been the 

only evidence establishing a legally-recognized defense to the charges. 
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See, e.g., Loudermilk, 106 So. 3d at 960 (citing Visger v. State, 953 So. 2d 

741, 744 (Fla. 4th DCA 2007)). 

Appellant was convicted after a jury trial of two counts of driving 

under the influence causing serious bodily injury. We affirmed the 

convictions and sentences on direct appeal. See Bribiesca-Tafolla v. 

State, 93 So. 3d 364 (Fla. 4th DCA 2012). A key issue at trial was 

whether appellant drove the truck that resulted in the victims’ serious 

injury following a multi-car accident. The truck was registered to 

appellant’s wife, and she told police that appellant had left alone driving 

the truck several hours earlier. Appellant and the truck’s other 

occupant, Raphael Gomez, were ejected as a result of the crash. The 

occupants of the other two cars involved in the crash did not see who 

was driving the truck. The police were unable to identify who was 

driving based on the locations of where appellant and Mr. Gomez were 

found after the crash. An investigating officer testified that at the 

hospital, following the issuance of Miranda warnings, appellant admitted 

to driving the truck that caused the crash. 

Appellant’s defense at trial was that Mr. Gomez drove the truck and 

that appellant did not admit to driving at the time of the crash, contrary 

to the officer’s testimony. Through claim two, appellant argues that 

counsel was ineffective in misadvising him about the need for his trial 

testimony to support his defense and about whether a letter he had 

written apologizing to the victims could be used against him.

His allegations are facially sufficient to state a prima facie claim for 

ineffective assistance of counsel. Appellant points out that counsel 

stated in opening that the evidence would show Mr. Gomez drove the 

truck. Counsel told the jury that Mr. Gomez drove because appellant 

was tired and wanted to sleep. However, Mr. Gomez did not testify and 

was not expected to testify at trial. Appellant argues that without 

testimony explaining how and why Mr. Gomez was driving, there was no 

evidentiary support for his theory of defense. Appellant notes that in 

closing, the state asked the jury whether appellant had furnished the 

promised testimony. Appellant’s motion details the testimony he would 

have furnished. He also contends that his testimony was needed to 

explain the circumstances surrounding his admissions to police. 

Appellant’s claim regarding the need for his testimony to support the 

only defense argued at trial is not refuted by the record. On remand, the 

trial court may either attach additional portions of the record, if any, 

refuting appellant’s allegations or hold an evidentiary hearing on this 

claim.
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Affirmed in part, Reversed in part, and Remanded with directions.

DAMOORGIAN, C.J., GROSS and GERBER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.