## F I FTH 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________ Case No. 5D 20 23- 3374 LT Case No. 2019

- CF

- 003140 -A

_____________________________ V INZETT L AMAR W ATKINS , Appella nt,

v.
S TATE OF F LORIDA , Appellee

.

_____________________________

3.850 Appeal from the Circuit Court for Lake County. Lawrence J. Semento, Judge.

Vinzett Lamar Watkins, Snead s , pro se. Ashley M oody, Attorney General, Talla hassee, and Richard A. Pa llas, Jr., Assistant Attorney Gen eral, Daytona Bea ch, for Appellee.

J une 7, 2024

H ARRIS , J.
In Septem ber 2021, Appellant , Vinzett Watkins pled no contest to a charge of Writing Threats to Kill or to do Bodily Injury. He was adjudicated guilty and sentenced to 11 months and 29 days in jail, followed by two years of probation. A year later, an amended affidavit of violation of probation was filed, alleging that Appellant violated probation conditions 2, 3, 4, and 5. A violation of probation2 (VOP) hearing was conducted, and the court found that Appellant had in fact violated probation.
Appella nt subsequently filed a Florida Rule of Criminal Procedure 3.850 Motion for Postconviction Relief raising three grounds: that his counsel was ineffective for failing to file a motion to disqualify the trial court judge; that trial counsel was ineffective for failing to argue that the threatening letter was a forgery; and that his plea was involuntary. The court entered an or der summarily denying Appellant’s motion.

The stand ard of review for a 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, are conclusively refuted by the record, or are legally insufficient. Id

.
Pursuant to the United States Supreme Court decision in Strickland v. Washington , 466 U.S. 668, 687 (1984), for an ineffective assistance of counsel claim to be successful, the defendant must establish both deficient performance and prejudice. Deficient performance “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guarante e d the defendant by the Sixth Amendment.” Id

. There is a strong presumption that counsel’s performance was not ineffective and it is up to the defendant to present evidence to overcome this presumption. Id . at 689.

To esta blish prejudice when a defendant has entered a plea, the defendant must demonstrate “a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial

. ” Grosvenor v. State , 874 So. 2d 1176, 1179 (Fla. 2004) (quoting Hill v. Lockhart , 474 U.S. 52, 59 (1985)).

In determini ng whether there is a reasonable probability that a defendant would have proceeded to trial in lieu of a plea, the court should look at “the totality of the circumstances surrounding the plea, including such factors as whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference3 between the sentence imposed under the plea and the maximum possible sentence the defendant faced at trial.” Grosvenor , 874 So. 2d at 1181

– 82.
Appella nt first argued that counsel was ineffective for allowing him to be prosecuted in Lake County. Because Appellant was charged with writing a threatening letter to a Lake County judge, he argued that he could not be prosecuted in Lake County. Appellant argued that counsel was ineffective for failing to file a motion to disqualify Judge Metz from his case, and had counsel done so, Appellant would not have entered his plea and would have proceeded to tri al.

The postconviction court noted the general standard for disqualification of a judge, that adverse rulings are not a sufficient basis, and concluded that Appellant’s propose d motion for disqualification would not have been meritorious ; therefore,

couns el was not ineffective for failing to file such a motion. The court also generally found that Appellant had not articulated a claim satisfying the relevant legal standards.

Generall y, “disqualification is required where the facts alleged and established, which must be taken as true, would place a reasonably prudent person in fear of not receiving a fair and impartial proceeding.” Erlinger v. Federico , 242 So. 3d 1177, 1181 (Fla. 1st DCA 2018) (citing Kline v. JRD Mgmt. Corp

. , 165 So. 3d 812, 814 (Fla. 1st DCA 2015)). However, “[g]eneral and speculative assertions about a judge’s attitude will not warrant relief.” Erlinger , 242 So. 3d at 1181 (citing Krawczuk v. State , 92 So. 3d 195, 201 (Fla. 2012)). Rather than cite to any specific facts, Appellant merely argued that because the victim had been a judge in the county, all judges in that county had to be disqualified. This sort of sweeping generalization is insufficient to warrant disqualification , and counsel was not in effective for failing to file the motion. Accordingly , we conclude that this ground was properly denied.
Appella nt next argued that counsel was ineffective for failing to argue that the threatening letter was actually forged. According to Appellant, he told counsel the letter had been forged, and identified several witnesses who would testify that forgery was an4 ongoing problem at the correctional facility wherein he was held. Appellant listed three officers from the prison, as well as the victim. Had those witnesses been called, Appellant arg ued, he would not have entered a plea and would have proceeded to trial.

On appeal, Appellant notes that the court did not specifically address this ground in its order and argues that the ground should either be addressed or set for an evidentiary hearing. Insofar as forgery would mean someone else made the letter, it would sensibly be a valid defense to the convicted crime. § 836.10(2), Fla. Stat. (2021). Furthermore, with no records attached by the postconviction court, there is no record by which this claim could be conclusively refuted. See Henry v. State , 305 So. 3d 803, 805

– 06 (Fla. 5th DCA 2020) (citing Nordelo v. State , 93 So. 3d 178, 184 (Fla. 2012)). Although Appellant is challenging the underlying conviction, not the revocation proceedings, the motion is nonetheless timely from both judgments. Fla. R. Crim. P. 3.850(b). Accordingly, we reverse and remand for this ground to be explicitly addressed below. See Robertson v. State , 862 So. 2d 102, 103

– 04 (Fla. 2d DCA 2003).

Fina lly, Appellant argued that his plea was involuntary. According to Appellant, he was never informed that if he violated probation, he could be sentenced up to the statutory maximum for the crime. He was also unaware he would later be designated a violent felony offender of special concern.

As wit h ground two, this ground was not explicitly addressed in the trial court’s order. The only record provided here, attached by Appellant rather than the court, is the written plea agreement, and that form does not cover the ramifications for violating probation. As there are no records conclusively refuting this ground, the summary denial of this ground is also reversed and remanded for reconsideration. See Smith v. State , 968 So. 2d 675, 677 (Fla. 4th DCA 2007).

We affi rm the summary denial of the first ground, see Krawczuk , 92 So. 3d at 201 (quoting Parker v. State , 3 So. 3d 974, 982 (Fla. 2009)) , but reverse and remand for reconsideration of grounds two and three. See Fla. R. App. P. 9.141(b)(2)(D).5 A FFIRMED in part ; R EVERSED in part ; R EMANDED with instructions.

S OUD and P RATT , JJ., concur.

________ _____________________ Not fin al until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331

.

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