Ulysses Gonzalez v. State of Florida

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

ULYSSES GONZALEZ,
Appellant,

v.

STATE OF FLORIDA,
Appellee.

No. 4D2025-3220

[June 10, 2026]

Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Frank David Ledee,
Judge; L.T. Case No. 062001CF012190A88810.

Ulysses Gonzalez, Miami, pro se.

James Uthmeier, Attorney General, Tallahassee, and Richard
Chambers Valuntas, Senior Assistant Attorney General, West Palm Beach,
for appellee.

PER CURIAM.

Ulysses Gonzalez appeals an order summarily denying his Florida Rule
of Criminal Procedure 3.850 motion for postconviction relief following this
Court’s remand to the trial court. We treat Gonzalez’s appeal as a motion
to enforce the mandate in Gonzalez v. State, 412 So. 3d 797, 799 (Fla. 4th
DCA 2025), and reverse. See Ramsay v. State, 291 So. 3d 963, 965 (Fla.
4th DCA 2020) (noting disparate treatment of appeals challenging lower
court actions regarding mandates and concluding that the appeal should
be treated as a motion to enforce a mandate).

We grant the motion and reverse the order because the trial court failed
to follow this Court’s specific instructions on remand. Gonzalez, 412 So.
3d at 799; see also Wolfe v. Nazaire, 758 So. 2d 730, 733 (Fla. 4th DCA
2000) (explaining the difference between general and specific appellate
remand instructions).

Gonzalez’s rule 3.850 motion alleged newly discovered evidence,
claiming that his now-deceased defense counsel had failed to inform him
of a favorable pre-trial plea offer. Gonzalez was tried and sentenced to
prison in 2001. Gonzalez, 412 So. 3d at 798. Gonzalez alleged that he
had recently learned of the plea from his cousin and father during their
visit with him in prison. Id. Gonzalez’s motion included his father’s
affidavit.

When summarily denying the motion initially, the trial court deemed
the father’s affidavit “inherently incredible.” We disagreed, recognized the
claim was cognizable, 1 and remanded the case accordingly with specific
directions to either conduct an evidentiary hearing or provide the State
with an opportunity to submit portions of the record conclusively showing
appellant is not entitled to relief. Id. at 799. Judge Warner authored a
special concurrence, agreeing with the majority considering the governing
law, but opining that the trial court on remand should consider whether
the motion was legally insufficient on other grounds, including the
admissibility of Gonzalez’s father’s affidavit. Id. at 799-800.

On remand, the trial court accepted the State’s renewed position that
the subject affidavit, without testimony from the defense attorney, or other
non-hearsay testimony, cannot provide a basis for relief because it is
inadmissible hearsay.

We reverse and remand because the trial court failed to follow this
Court’s specific remand instructions by failing to conduct an evidentiary
hearing or to attach records conclusively refuting the claim. Wolfe, 758
So. 2d at 733 (“A reversal and remand with general directions for further
proceedings vests the trial court with broad discretion in directing the
course of the cause. . . . Where, however, the remand instruction is
specific, it is improper to exceed the bounds of that instruction.”); see also
McKinney v. Graham, 414 So. 3d 286, 290 (Fla. 6th DCA 2025).

We recognize the Florida Supreme Court is currently reviewing conflict
between our precedent and the Fifth District’s concerning the propriety of
a claim of newly discovered evidence based on counsel’s failure to convey
a plea offer. See Malcolm v. State, No. 4D2025-1566, 2026 WL 1155667
(Fla. 4th DCA April 29, 2026) (certifying conflict Gadson v. State, 429 So.
3d 1052 (Fla. 5th DCA 2025)), rev. granted, No. SC2025-1824, 2026 WL
765437 (Fla. Mar. 17, 2026). Because the Florida Supreme Court has not
superseded the legal basis of our initial mandate, the trial court was
required to follow our specific instructions. See McKinney, 414 So. 3d at
290.

1 Clark v. State, 236 So. 3d 481 (Fla. 4th DCA 2018), Petit-Homme v. State, 205

So. 3d 848, 849 (Fla. 4th DCA 2016).

2
Reversed and remanded.

KUNTZ, C.J., CIKLIN and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely-filed motion for rehearing.

3