IN THE DISTRICT COURT OF APPEAL OF THE STATE O F FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME E XPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED JESUS G. GONSALEZ ,

Appellant ,
v. Case No

. 5D 22

- 940 LT Case No. 2017

- CF

- 0589 STATE OF FLORIDA ,

Appellee

. ________________________________/ Opinion filed April 21, 2023 3.850 Appeal from the Circuit Court for Putnam County , Howard O. Mc G illin, Jr. , Judge. Jesus G. Gonsalez, Lowell, pro se. Ashley Moody, Attorney General, Tallahassee, and Rebe cca Rock McGuigan , Assistant Attorney General, Daytona Beach, for Appellee.

EISNAUGLE, J. Appellant, Jesus G. Gonsalez , appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion challenging his convictions after an open plea for leaving the scene of a crash involving serious bodily2

injury, leaving the scene of a crash involving damage, careless operation of a motor vehicle without a valid driver’s license, and driving a commercia l vehicle while license suspended

. We reverse as to G rounds 2, 3, 6, and 9 , and otherwise affirm. Failure to Investigate Witnesses In Ground 2, Gonsalez alleged that he was forced to enter a n open plea 1 because his counsel failed to investigate and prepare certain defense witnesses for trial . Specifically, Gonsalez alleged that these fact and expert
witnesses would have established that he did not know he was in a collision
because a heart condition caus ed him to black out while driving

. In summarily denying this claim, the postconviction court reasoned that the record conclusively refutes this claim because counsel was prepared enough at sentencing to cross

- examine certain witnesses on this subject . On appeal, Gonsalez argues that counsel’s preparation for sentencing, which was more than two months after entry of the plea, does not conclusively refute
this claim.

1 The record attachments do not include the plea colloquy, nor does our record indicate whether a trial was imminent at the time of the plea. Given our very limited record, we consider the issues only as framed, and find no grounds for a “ tipsy coachman ” affirmance

. See Robertson v. St ate , 829 So. 2d 901, 906 (Fla. 2002).3

As to the expert witnesses , Gonsalez alleged a sufficient claim

. See State v . Lucas , 183 So. 3d 1027 (Fla. 2016) . Moreover, we agree with Gonsalez that the record attachments , which largely focus on the sentencing hearing, do not conclusively refute the claim. We therefore reverse and remand for the postconviction court to condu ct an evidentiary hearing or to attach records conclusively refuting this part of the claim. As to the fact witnesses, however, Gonsalez’s claim was conclusory and insufficiently pled. See Nelson v. State , 875 So. 2d 579, 583

– 84 (Fla. 2004). Therefore, on remand, the postconviction court must give Gonsalez an opportunity to amend this claim as t o the fact witnesses. See Fla. R. Crim. P. 3.850(f) (3)

. Plea to Mutually Exclusive Crimes In Ground 3, Gonsalez alleged that his counsel was ineffective , as we read the claim, for advising him to enter a n open plea to both leaving the scene of an accident with serious bodily injury and leaving the scene of an
accident with only property damage

. See § § 316.027(2)( b ) , .061(1), Fl a. Sta t

. (2016)

. Ground 3 fully analyze s the pertinent statutory language to argue that these two crimes are mutually exclusive, quot ing Linen v. State , 268 So. 3d 874, 876 (Fla. 2d DCA 2019) in support , and concludes with an allegation that if counsel had been effective, “the plea process would have been different.”4

While the substance of Ground 3 is clear to us , at times Gonsalez inartfully labeled counsel’s alleged ineffectiveness as allowing “ tru e inconsistent verdict s ” despite the fact there was no verdict in Gonsalez’s

case. Nevertheless, the motion also more accurately described this ground

as allowing “inconsistent judgments” and “inconsistent convictions and sentences.” In summarily denying this claim, the postconviction court focused on
the phrase “inconsistent verdict s ” and reasoned that there could not be an
inconsistent verdict in this case because Gonsalez enter ed a plea. On appeal, Gonsalez argues that the postcon viction court erred in denying this ground. We agree. Considering Ground 3 in its entirety , we conclude that a fair reading of the ground is not that Gonsalez somehow suffered truly inconsistent jury verdicts. See Gunn v. State , 378 So. 2d 105, 106 (Fla. 5 th DCA 1980) (employing “a fair reading” of pro se postconviction
motion )

. Instead, Ground 3 alleges that counsel was ineffective for advi sing Gonsalez to enter a plea to mutually exclusive crimes , as explained in Linen

. 2

2 Importantly, other than recognizing that Gonsalez mistakenly used the term “inconsistent verdict,” we need not rewrite or add to the motion to reach our interpretation of Ground 3

.5

Given that the postconviction court misinterpreted Ground 3, w e reverse and remand for the court to either conduct an evidentiary hearing or
attach records conclusively refuting this claim

.

Plea Based on Incorrect Sentencing Score In Ground 6, Gonsalez alleged that his counsel was ineffective for advising him to enter an open plea based on a scoresheet that incorrectly
indicat ed he qualified for a non - prison sanction. The motion explains that the State submitted an amended scoresheet at sentencing, which increased Gonsalez’s lowest permissible sentence to 55.4 months in prison. In the motion, Gonsalez alleged that no reasonable attorney would advi se a defendant to plead open based on the possibility of a non

- prison sanction when the correct scoresheet required a minimum sentence of 55.4 months. In summarily denying Ground 6, the postconviction court interpreted the claim as alleging that Gonsalez was sentenced using an incorrect scoresheet. On appeal , Gonsalez argues that he was not challenging the scoresheet used at sentencing, but instead argued that his counsel was ineffective for advising him that he would qualify for a non

- prison sanction if he entered a plea. W e agree that the postconviction court misinterpreted Gonsalez’s argument , and we reverse and remand for the court to either6

conduct an evidentiary hearing or attach records conclusively refuting the
claim. Given our disposition on Grounds 2, 3, and 6, we also reverse as to Ground 9 , which alleges cumulative error. We otherwise affirm. AFFIRMED in part ; REVERSED in part; and REMANDED.
LAMBERT , C.J. , and EDWARDS , J., concur.