IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

RENE GUTIERREZ, 

Appellant, 

v.

Case No. 5D21-3048

LT Case No. 2014-CF-9679

STATE OF FLORIDA, 

Appellee. 

________________________________/

Opinion filed July 1, 2022

3.850 Appeal from the Circuit Court 

for Orange County, 

Mark S. Blechman, Judge.

Michelle Walsh, of Law Offices of 

Michelle R. Walsh, P.A., Miami, for 

Appellant.

Ashley Moody, Attorney General, 

Tallahassee, and Kristen L. Davenport, 

Assistant Attorney General, Daytona 

Beach, for Appellee.

EVANDER, J.

Rene Gutierrez appeals the summary denial of his motion for 

postconviction relief filed pursuant to Florida Rule of Criminal Procedure 
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3.850. Because the records attached to the order do not conclusively refute 

appellant’s claims, we reverse.

The underlying facts, as alleged in Appellant’s motion, reflect that 

Appellant was charged with aggravated battery with a firearm and attempted 

first-degree murder. The victim was shot during a late night/early morning 

outdoor social gathering in a rural area. The numerous attendees at this 

social gathering immediately “scattered” after the shooting. At the time, 

neither the victim, nor his two brothers who were present at the event, were 

able to identify the shooter. All three of the brothers had imbibed alcoholic

beverages during the several hours preceding the shooting. 

Months later, after conducting their own investigation, the brothers 

viewed a photograph of Appellant and identified him as the shooter. At trial, 

appellant’s primary defense was that the witness testimony identifying him as 

the shooter was not credible. The jury found Appellant guilty of aggravated 

battery with a firearm and the lesser included offense of attempted seconddegree murder. His convictions were per curiam affirmed by this Court. 

Gutierrez v. State, 246 So. 3d 1269 (Fla. 5th DCA 2018). 

In his timely filed motion for postconviction relief, Appellant alleged that 

his trial counsel was ineffective in failing to impeach the victim and one of his 

brothers with evidence of their multiple prior felony convictions and/or 
3

convictions of crimes involving dishonesty. Appellant further alleged that his 

trial counsel was ineffective in failing to impeach the other brother’s trial 

testimony with evidence of prior inconsistent statements made to law 

enforcement officers.

In summarily denying the motion, the postconviction court found that 

the impeachment of the three brothers’ trial testimony would not have 

changed the outcome of the trial. Limited excerpts of the trial transcript were 

attached to the postconviction court’s order.

The standard of review for summary denial of a rule 3.850 motion is de 

novo. Lebron v. State, 100 So. 3d 132, 133 (Fla. 5th DCA 2012). The trial 

court must grant an evidentiary hearing unless the allegations are not pled 

with sufficient detail, conclusively refuted by the record, or are legally 

insufficient. Id. 

Claims of ineffective assistance of counsel must meet the two prongs 

of the Strickland test: 

First, the defendant must show that counsel’s performance 

was deficient. This requires showing that counsel made 

errors so serious that counsel was not functioning as the 

“counsel” guaranteed the defendant by the Sixth Amendment.

Second, the defendant must show that the deficient 

performance prejudiced the defense. This requires showing 

that counsel’s errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable.
4

Strickland v. Washington, 466 U.S. 668, 687 (1994). The second prong is 

met when “there is 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. 

“Failure to impeach a key witness may amount to ineffective assistance 

of counsel, warranting relief. This is especially true in cases involving 

credibility contests, as the relative credibility of the witnesses becomes 

essential to the trial.” Kelly v. State, 198 So. 3d 1077, 1078 (Fla. 5th DCA 

2016) (citations omitted).

Here, given that Appellant’s primary defense was based on the alleged 

unreliability of the identification testimony and given the limited nature of the 

trial excerpts attached to the postconviction court’s order, we cannot agree 

that Appellant’s claims were conclusively refuted. On remand, the trial court 

is directed to attach records conclusively refuting the claims at issue or, in the 

alternative, hold an evidentiary hearing.

REVERSED and REMANDED.

EISNAUGLE and HARRIS, JJ., concur.