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

SOLOMON JASON HARRELL, JR., 

Appellant, 

v. Case No. 5D21-674

LT Case No. 05-2016-CF-037245-A

STATE OF FLORIDA, 

Appellee. 

________________________________/

Opinion filed April 29, 2022

3.850 Appeal from the Circuit Court

for Brevard County, 

Jeffrey Mahl, Judge.

Solomon J. Harrell, Jr., Okeechobee,

pro se.

Ashley Moody, Attorney General, 

Tallahassee, and Kellie A. Nielan, 

Assistant Attorney General, Daytona 

Beach, for Appellee. 

LAMBERT, C.J.

Solomon Jason Harrell, Jr., was convicted after trial of aggravated 

battery with a firearm and aggravated assault with a firearm. The trial court 
2

sentenced Harrell to serve ten years in prison, with a ten-year mandatory 

minimum provision, for his aggravated battery conviction; and it sentenced 

him to a concurrent five years’ imprisonment, with a three-year mandatory 

minimum provision, for the aggravated assault conviction. Harrell’s direct

appeal of his convictions and sentences was affirmed by this court without 

opinion.1

 

Harrell thereafter timely filed the instant Florida Rule of Criminal 

Procedure 3.850 motion, raising six grounds for postconviction relief. 

Harrell’s first claim was based on “newly discovered” evidence, while 

grounds two through five sought relief for the alleged ineffectiveness of his 

trial counsel. Lastly, ground six of Harrell’s motion asserted a claim of 

cumulative error.

The postconviction court entered a final order summarily denying

Harrell’s motion, which he has timely appealed here. Preliminarily, Harrell’s 

initial brief filed in this court did not raise any argument regarding the denial 

of ground five of his motion. We therefore affirm that part of the order. See 

Ward v. State, 19 So. 3d 1060, 1061 (Fla. 5th DCA 2009) (holding that an 

appellant abandons his challenge on appeal to those claims summarily 

1 See Harrell v. State, 275 So. 3d 1249 (Fla. 5th DCA 2019).
3

denied by the postconviction court in a rule 3.850 proceeding by not 

addressing them in his brief). However, for the following reasons, we reverse 

the postconviction court’s summary denial of the remaining grounds of 

Harrell’s motion and remand for further proceedings. 

ANALYSIS— 

To uphold the summary denial of a claim under rule 3.850, the claim 

must be either legally insufficient, or it must be able to be conclusively 

resolved as a matter of law or by reliance upon the records in the case. See

Fla. R. Crim. P. 3.850(f)(5). Where, as here, no evidentiary hearing is held 

by the postconviction court, an appellate court must accept a defendant’s 

factual allegations contained in the rule 3.850 motion, to the extent that the 

allegations are not refuted by the record. Peede v. State, 748 So. 2d 253, 

257 (Fla. 1999). Further, when the summary denial of the rule 3.850 motion 

was based on the records in the case, as was done in the present case, a 

copy of that portion of the file and records that conclusively shows that the 

defendant is not entitled to relief must be attached to the final order. See

Fla. R. Crim. P. 3.850(f)(5). The appellate standard of review of a rule 3.850 

claim that has been summarily denied is de novo. State v. Coney, 845 So. 

2d 120, 137 (Fla. 2003). 
4

With these principles in mind, we address, in order, the respective 

claims made by Harrell that were summarily denied.

GROUND ONE–NEWLY DISCOVERED EVIDENCE

In this first ground, Harrell filed with his motion, as newly discovered 

evidence, separate affidavits from two of his neighbors who were purportedly 

eyewitnesses to the incident that led to his arrest and subsequent 

convictions. These affidavits directly refute and contradict both the victim’s 

trial testimony and that of her sister that Harrell was the aggressor that 

evening and that he was in possession of and used a firearm during the 

alleged commission of these crimes. More particularly, both affiants 

affirmatively stated that the victim struck Harrell several times before Harrell 

hit back one time in self-defense. Both affiants also averred that Harrell 

never possessed a gun during this encounter. Harrell asserted that had this

testimony from these two witnesses been presented at trial, he would have 

probably been acquitted. 

In Taylor v. State, 260 So. 3d 151 (Fla. 2018), the Florida Supreme 

Court concisely set forth its previously announced standard of review 

governing claims of newly discovered evidence: 

[T]o obtain a new trial based on newly discovered

evidence, a defendant must meet two requirements.

First, the evidence must not have been known by the
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trial court, the party, or counsel at the time of trial, 

and it must appear that the defendant or defense 

counsel could not have known of it by the use of 

diligence. Second, the newly discovered evidence 

must be of such nature that it would probably 

produce an acquittal on retrial. Newly discovered 

evidence satisfies the second prong of [this] test if it 

“weakens the case against [the defendant] so as to 

give rise to a reasonable doubt as to his culpability.” 

If the defendant is seeking to vacate a sentence, the 

second prong requires that the newly discovered 

evidence would probably yield a less severe 

sentence. 

Id. at 158 (internal citations omitted).

In summarily denying this ground of Harrell’s motion, the 

postconviction court did not directly address the first prong of the test—

namely, whether these affidavits qualified as newly discovered evidence. 

The court did not discuss the issue of whether Harrell or his counsel could 

have discovered the affiants through the exercise of due diligence. Instead, 

it found that neither affiant “explained [in their respective affidavits] why they 

did not come forward until now.” The court further concluded that these

affidavits were conclusively refuted by the trial testimony of the victim and 

her sister as to how the incident occurred and would also have had “minimal 

impeachment value.” 

Our analysis of the court's denial of this ground is directed by the 

principles that “[i]n the absence of an evidentiary hearing, courts must 
6

accept a defendant's allegations about what a witness might have said at 

trial as true unless they are conclusively rebutted by the record” as well as 

that “it is improper to summarily dismiss such a ground because the trial 

court finds that ‘overwhelming evidence’ was submitted at trial.” 

Washington v. State, 323 So. 3d 234, 236 (Fla. 5th DCA 2021) (citing 

Jacobs v. State, 880 So. 2d 548, 553–55 (Fla. 2004)). Here, although the 

postconviction court did not find the affidavits of the “newly discovered” 

witnesses to be inherently incredible, see McLin v. State, 827 So. 2d 948, 

955 (Fla. 2002) (explaining that summary denial of postconviction claim may 

be warranted “where, from the face of the affidavit, it can be determined that 

the affidavit is ‘inherently incredible’”), it nevertheless appears to have 

summarily concluded that the victim’s and her sister’s conflicting trial 

testimony was more credible than that of the “newly discovered” affiants. 

We conclude that the postconviction court erred in this regard as 

neither the record attachments to the order nor, for that matter, the court’s 

analysis show or explain why the apparent material testimony of Harrell’s 

newly discovered witnesses—which, if believed by a jury, could result in an 

acquittal or, at the very least, non-mandatory minimum sentences—was 

conclusively refuted by the victim’s and her sister’s conflicting or 

contradictory trial testimony. The resolution of this claim requires either a 
7

hearing or additional record attachments to the order. Cf. Jacobs, 880 So. 

2d at 555 (“[A] claim of ineffectiveness in failing to present important 

exculpatory evidence cannot be resolved on the basis of the mere existence 

of conflicting evidence in the record. Rather, the record evidence must 

conclusively rebut the claim if the claim is to be resolved without a hearing.”);

Ciambrone v. State, 128 So. 3d 227, 234 (Fla. 2d DCA 2013) (reversing 

summary denial of ineffective assistance of counsel claim alleging that 

multiple witnesses would have contradicted and impeached the testimony of 

State’s witnesses that the defendant abused the victim). We further 

conclude that the postconviction court’s analysis did not conclusively refute 

the sufficiently pled claim that Harrell and his counsel did not know about

these affiants and could not have known about them, which, when no 

evidentiary hearing is held, must be accepted as true if not conclusively 

refuted by the record. See Peede, 748 So. 2d at 257.

We therefore reverse the summary denial of this ground and remand 

for further proceedings. 

GROUND TWO–COUNSEL’S ALLEGED MISADVICE AS TO THE LIMITS 

OF IMPEACHMENT IF HARRELL TESTIFIED

Harrell alleged in ground two of his motion that he chose not to testify

at his trial due to his trial counsel’s ineffectiveness in misleading him that, if 
8

he testified, the State would be able to cross-examine him not only as to the 

number of his prior felony convictions, but also as to the specific nature of 

his prior felonies. Harrell averred that, but for counsel’s misadvice, he would 

have testified at trial and explained to the jury that he did not have a firearm 

and that the victim first hit him on his head and face with her fists, resulting 

in his responding in self-defense; and he contended that presentation of that 

testimony to the jury would have likely resulted in an acquittal. 

To establish an ineffective assistance of trial counsel claim under the 

seminal case of Strickland v. Washington, 466 U.S. 668 (1984), a movant, 

such as Harrell, must show that “counsel’s performance falls outside the 

range of reasonable professional assistance and . . . there is a reasonable

probability that the results of the proceeding would have been different but 

for the inadequate performance.” State v. Anderson, 215 So. 3d 181, 183 

(Fla. 5th DCA 2017) (quoting Larry v. State, 61 So. 3d 1205, 1207 (Fla. 5th 

DCA 2011)). To resolve a facially sufficient claim for ineffective assistance 

of counsel, a postconviction court must either hold an evidentiary hearing to 

address the claim, or it must attach portions of the record to its denial order 

conclusively refuting the defendant’s allegations. Nelson v. State, 73 So. 3d 

77, 84 (Fla. 2011).
9

As to the underlying substance of Harrell’s claim in this ground, the law 

is clear that the State is limited on cross-examination to asking a defendant

if he or she had previously been convicted of a felony and, if so, the number

of prior felony convictions. See Gavins v. State, 587 So. 2d 487, 489 (Fla. 

1st DCA 1991) (holding that “[g]enerally, when a defendant in a criminal case 

takes the stand, the prosecutor is permitted to attack the defendant’s 

credibility by asking whether the defendant has ever been convicted of a 

felony . . . , and how many times. § 90.610, Fla. Stat. (1989)” and that “[i]f 

the defendant admits the number of prior convictions, the prosecutor is not 

permitted to ask further questions regarding prior convictions, nor question 

the defendant as to the nature of the crimes”). 

In denying this ground of the motion, the postconviction court attached 

to its order the transcript of the colloquy between the trial court and Harrell 

during trial when Harrell advised the court that he had elected not to testify. 

The court also separately concluded that Harrell became aware that the 

State would be limited in its cross-examination of him based on its earlier 

questioning of the victim where, during direct examination, the State only 

inquired as to the number of the victim’s felony convictions, and not the 

specifics of her convictions. 
10

The record of the colloquy attached to the denial order does not show 

that Harrell had been advised by counsel, or the trial court, that, on crossexamination, the State could not inquire into the specifics of Harrell’s prior 

felony convictions. Nor do we agree with the lower court that because the 

record shows that the State questioned its own witness just as to the number, 

and not the specifics, of her prior felony convictions, this translated into

conclusively refuting Harrell’s claim that he was misled by his counsel or that 

he was otherwise aware that, on cross-examination, the State could not

inquire regarding the specifics of his prior felony convictions. 

Accordingly, being presently required to accept, as true, Harrell’s 

allegations that he was misled into believing that the State could inquire into

the specifics of his prior felony convictions and that, but for this, he would 

have testified at trial in a manner that materially differed from the version of 

events testified to by the victim, see Hird v. State, 204 So. 3d 483, 484–85 

(Fla. 5th DCA 2016) (“[W]here no evidentiary hearing is held below, we must 

accept the defendant’s factual allegations to the extent they are not refuted 

by the record.” (quoting Peede, 748 So. 2d at 257)), we agree with Harrell 

that the postconviction court erred in summarily denying this ground of his 

motion. 
11

GROUND THREE–COUNSEL’S FAILURE TO SUFFICIENTLY IMPEACH 

VICTIM’S TESTIMONY REGARDING PENDING FELONY CHARGES

During his opening statement at trial, Harrell’s counsel reminded the 

jury of the importance of using “reasonableness and common sense.” He

then concluded his remarks by telling the jurors that they should not forget 

that the victim had “three pending felonies, one of which is a first-degree 

felony that she could do up to 30 years on by—by itself, just that one charge, 

and it carries with it a $50,000 fine.”

Thereafter, during closing argument, Harrell’s counsel, as part of his

effort to convince or persuade the jury that the victim’s testimony about the 

alleged criminal incident was not credible, again reminded the jury to 

consider or evaluate the victim’s testimony in light of her three pending felony 

charges. This comment was met by timely objection from the State, in which 

the State pointed out that no evidence was actually presented during trial 

about the victim’s alleged pending felony charges. The trial court sustained

the objection. 

Harrell alleged in this ground of his postconviction motion that his trial 

counsel was thus ineffective in not presenting the impeaching evidence of 

the victim’s pending felony charges, especially after having indicated his 

intent to do so during his opening statement. Harrell asserted that, 

resultingly, he was prejudiced by his counsel’s error because this evidence
12

would have further damaged the victim’s credibility, creating reasonable 

doubt as to his guilt. 

The failure to impeach a witness, particularly one who may have a 

motive to lie, may constitute ineffective assistance of counsel. See Cipriano 

v. State, 883 So. 2d 363 (Fla. 4th DCA 2004). To that end, it is well-settled

that “if a witness for the State were presently or recently under actual or 

threatened criminal charges or investigation leading to such criminal 

charges,” then “a person against whom such witness testifies in a criminal 

case has an absolute right to bring those circumstances out on crossexamination or otherwise so that the jury will be fully apprised as to the 

witness’ possible motive or self-interest with respect to the testimony he 

gives.” Morrell v. State, 297 So. 2d 579, 580 (Fla. 1st DCA 1974); accord

Torres-Arboledo v. State, 524 So. 2d 403, 408 (Fla. 1988) (“When charges 

are pending against a prosecution witness at the time he testifies, the 

defense is entitled to bring this fact to the jury’s attention to show bias, motive 

or self-interest.” (citing Fulton v. State, 335 So. 2d 280, 283 (Fla. 1976))); 

George v. State, 251 So. 3d 262, 270 (Fla. 3d DCA 2018) (holding “that the 

trial court abused its discretion by not permitting the defense to crossexamine [a witness] regarding his pending criminal charges”). 
13

The postconviction court’s summary denial of this ground of Harrell’s 

motion provided little substantive analysis as to how it reached its conclusion 

that counsel’s performance in failing to impeach the victim regarding her 

pending felonies was neither deficient nor prejudicial. Instead, the court 

appeared to focus on the fact that the State, during its direct examination of 

the victim, brought out that she had also been previously convicted of six 

felonies. Although accurate, this observation or finding does not address or 

otherwise conclusively refute Harrell’s specific claim here that he was 

prejudiced by his counsel’s failure to impeach the victim regarding her 

pending felony charges, nor do any of the attachments to the denial order. 

We thus reverse the summary denial of this ground. On remand, the court 

shall either hold an evidentiary hearing or provide further analysis and record 

attachments to its denial order conclusively refuting this specific claim of 

prejudice. 

GROUND FOUR—COUNSEL WAS INEFFECTIVE FOR FAILING TO 

FULLY ADVISE HARRELL OF THE STATE’S EVIDENCE PRIOR TO HIS 

REJECTION OF THE STATE’S FINAL PLEA OFFER

In ground four, Harrell alleged that the State had made him a final 

pretrial plea offer of thirty months in prison to resolve this case. Harrell

rejected this offer, resulting in the State “withdrawing” the offer and making 
14

no further plea offers. As previously mentioned, Harrell proceeded to trial 

and, as a result, is now serving the lengthier ten-year prison sentence.

Harrell raised two sub-claims for relief in this ground. He first alleged

that his counsel was ineffective in failing to apprise him, prior to having to 

decide whether to accept the State’s plea offer, of the photographic evidence 

of the victim’s injuries that the State intended to present against him at trial. 

Second, Harrell asserted that his counsel mistakenly advised him that the 

State could not convict him of either the aggravated battery or aggravated 

assault charges without first admitting the actual weapon into evidence. 

Harrell asserted that he was prejudiced by the aforementioned deficient 

performance of counsel because had he been properly advised (1) as to the 

existence and extent of the photographic evidence and (2) that he could, in 

fact, be convicted of the charged offenses without the firearm being admitted 

into evidence, he would have accepted the State’s thirty-month plea offer 

and the trial court would have accepted the plea and imposed the negotiated 

thirty-month sentence, instead of the ten-year prison sentence that he is 

currently serving as a result of rejecting the plea offer and proceeding to trial. 

See Alcorn v. State, 121 So. 3d 419, 430 (Fla. 2013). 

As to the second sub-claim that counsel misadvised Harrell that he 

could not be convicted of the aggravated felony charges absent the gun 
15

being admitted into evidence, precedent from this court provides that the 

admission of the gun into evidence is not a prerequisite for a conviction. 

Specifically, “[i]t is not fatal to the prosecution if the state does not introduce 

[a] weapon into evidence. . . . Eyewitness testimony that the defendant

possessed a firearm is sufficient evidence to support a finding that the 

defendant was in possession of a firearm.” Akins v. State, 838 So. 2d 637, 

639 (Fla. 5th DCA 2003) (citing Fletcher v. State, 472 So. 2d 537, 539 (Fla. 

5th DCA 1985); Crump v. State, 629 So. 2d 231, 233–34 (Fla. 5th DCA 

1993)). 

The postconviction court appears to have inadvertently failed to 

address or consider this claim in its denial order. Because Harrell’s claim 

that had he not been misadvised by his counsel, he would have accepted 

the State’s plea offer, the trial court would have accepted the offer, and he 

would have received a less severe sentence was sufficiently pled, see

Alcorn, 121 So. 3d at 430, we reverse and remand for the court to either hold 

an evidentiary hearing or to attach record documents to its order that 

conclusively refute this sub-claim of ground four. 

In summarily denying the first sub-claim asserted in ground four of 

Harrell’s motion, the court first noted that the State had provided the 

photographs to Harrell’s counsel early on in the case. The court further 
16

observed that, just before voir dire, Harrell was present in the courtroom 

when his counsel argued a motion in limine to exclude the photographs from 

being admitted into evidence.2 Thus, the court reasoned, Harrell was aware 

of the photographs’ existence. 

We conclude that the postconviction court’s analysis did not directly 

address or conclusively refute Harrell’s claim. Harrell asserted that his 

counsel’s ineffectiveness was in not showing him the photographs depicting 

the extent of the victim’s injuries prior to him having to evaluate whether to 

accept the State’s final plea offer. Harrell necessarily becoming aware of the 

existence of the photographs by virtue of a later-filed motion in limine is not 

dispositive. See Armstrong v. State, 148 So. 3d 124, 126 (Fla. 2d DCA 2014) 

(“In the context of ineffective assistance resulting in the rejection of a plea 

offer, ‘[p]rejudice . . . is determined based upon a consideration of the 

circumstances as viewed at the time of the offer and what would have been 

done with proper and adequate advice.’” (alteration in original) (quoting 

Alcorn, 121 So. 3d at 432)). 

As neither the denial order nor its attachments conclusively refute this 

sub-claim, we reverse and remand for the court either to hold an evidentiary 

2 The trial court denied the motion. 
17

hearing or to attach additional records to its order that conclusively refute this 

sub-claim. 

GROUND SIX–CUMULATIVE ERROR

Lastly, in ground six, Harrell sought relief based upon the various 

errors allegedly committed as more fully described in the first five grounds of 

his motion. The postconviction court, having summarily denied all other 

grounds for relief raised in the motion, denied Harrell’s cumulative error claim

as moot.

Because we are reversing the summary denial order regarding

grounds one through four of Harrell’s motion for the reasons just explained, 

we reverse the denial of his cumulative error claim as well. See Davidson v. 

State, 278 So. 3d 741, 744 (Fla. 5th DCA 2019) (“Last, Appellant asserts a 

claim of cumulative error. Because we are reversing and remanding for an 

evidentiary hearing as to the two [rule 3.850] claims discussed above, we 

likewise reverse the summary denial of the cumulative error claim for further 

consideration.” (citing Batista-Irizarry v. State, 266 So. 3d 254, 257–58 (Fla. 

5th DCA 2019))); Hempstead v. State, 980 So. 2d 1254, 1265 (Fla. 2d DCA 

2008) (holding that the reversal and remand on some of the defendant’s rule 

3.850 claims require the reversal of the cumulative error claim).
18

In summary, we affirm the postconviction court’s denial of ground five 

of Harrell’s motion. We reverse the summary denial of grounds one through 

four and ground six of the motion, and we remand for the lower court to either 

attach additional court records to its denial order that conclusively refute 

these claims for postconviction relief or to hold an evidentiary hearing. 

AFFIRMED, in part; REVERSED, in part; and REMANDED, with 

directions. 

EISNAUGLE and SASSO, JJ., concur.