IN THE CIRCUIT COURT OF THE 117 JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA, STATE OF FLORIDA, CRIMINAL DIVISOIN Plaintiff, CASE NO.: F06-33991A. vs. “JAVARIS ANDREWS, — e i Defendant. ORDER GRANTING DEFENDANT’S MOTION FOR POST-CONVICTION RELIEF 1. INTRODUCTION Javaris Andrews (“Defendant” or “Andrews”) moves for post-conviction relief pursuant to Fla. R. Crim. P. 3.850. Andrews asks the Court to vacate his conviction for violating probation (and the resulting fifty (50) year sentence imposed), insisting that: (a) his counsel was ineffective; and (b) exculpatory evidence — which was unavailable at the time of the probation violation hearing - would probably produce an acquittal. Because the claims Defendant advances were not legally insufficient ot conclusively refuted by the record, the Court conducted an evidentiary hearing over a two day period commencing on December 19, 2017 and concluding on January 26,2018. See Freeman v. State, 761 So. 2d 1055 (Fla. 2000) (“a defendant is entitled to an evidentiary hearing on a post-conviction relief motion unless (1) the motion,files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient”), Upon careful review of the evidence presented, and for the reasons discussed below, the Court finds Andrews’ Motion meritorious, vacates his conviction and sentence, and orders a new probation violation hearing. Ml. FACTS On October 9, 2006 Andrews — then age 19 — was charged with the crime of Second Degree Murder with a Deadly Weapon. On July 24, 2008 Andrews admitted guilt and received a sentence of three (3) years in State prison with credit for time served, followed by two (2) years community control, followed by ten (10) years probation, Defendant was released from prison on September 9, 2009 and completed community control (Le., house arrest) two (2) years later. On January 9, 2012 Andrews and his friend Emmanuelle Duncanson (“Duncanson”) were driving in the Brownsville neighborhood of Miami-Dade County, an area known for drug trafficking..At that time a “tactical narcotics team” was working the intersection of North W. 43 St, and 23" Ct. This since disbanded unit — whose purpose was to root out street-level drug crime — consisted of an “eyeball squad” that would be on the lookout for suspected drug transactions, and a “takedown team” that would then detain identified suspects.‘At approximately 7:00 p.m. Detective Darian Washington and his partner (“the eyeball squad”) saw Andrews and Duncanson pull up to the front of a house, exit their vehicle (a Nissan Maxima), and interact with a man Detective Washington suspected to be a drug dealer. The three men then walked towards the front of the opened — and Duncanson went to — the trunk of the car. Andrews then proceeded to walk “to the middle of the road, very suspicious looking around.” Andrews then got into the driver’s seat and headed north on NW. 23" Ct. Duncanson was in the passenger seat, Although Detective Washington did not witness any criminal activity, he opined that: (a) the tints on the car windows were “illegal” because “you can only see a figure in the car;” and (b) the car was travelling “I wouldn’t say over a high rate of speed, but it was not a normal speed.” While Detective Washington again confirmed that he never saw either Andrews or Duncanson do anything illegal, he radioed the “take down team” and instructed them to stop and investigate the vehicle based on “(b)asically, the suspicious activity, that they left a known drug location, the rate of speed that they left, the dark tint on the windows as well.” Upon receiving the radio command from the “eyeball” (Detective Washington) two members of the “take down team,” Detectives Romero and Dominguez, observed a Nissan “coming at a high rate of speed” and gave chase.The officers then pulled in front of - and “cut off the Nissan” ~ in order to “make the stop.” Both officers then exited their vehicle. Detective Dominguez then heard Detective Romero “screaming out gun, at which time, I’m observing the passenger in the vehicle [Duncanson] bending down in the car in the seat.” At that point Detective Dominguez saw the “butt of [a] andgi ig from the [passenger's] seat because he [Duncanson] never got the gun under the seat.” Detective Dominguez recovered and impounded the weapon. No drugs were found on Andrews, Duncanson or in the vehicle. The State subsequently charged both Andrews and Duncanson with possessing a weapon in violation of the terms and conditions of their probation, and with the new crime of possession of a firearm by a convicted felon. Both cases were presided over by Judge Thomas Rebull (“Judge Rebull” or the “court”), Andrews was represented by Larry Handfield, Esquire. Andrews’ probation violation hearing commenced on February 20, 2013." The State’s first witness, Detective Washington, again testified that “at no time did [he] see Javaris Andrews engaged in any illegal activity prior to ... directing the take down units to stop the vehicle,” and that he ordered the stop based on “... the tints, the reasonable suspicion about the way they’re acting, about the fact that they left a known drug location, that’s why I had the vehicle stopped.” ‘The State next called * Ac the same time the court also took evidence relevant to Andrews’ motion to suppress. The motion was ultimately 4Detective Romero who confirmed that she was working the area as a member of the “take down unit” at approximately 7:00 p.m. on January 9, 2012 with her partner, Detective Dominguez. At about that time she picked up a radio transmission from Detective Washington who ordered an investigative stop of the silver Nissan I “observed the vehicle coming at a high rate of speed” causing them to activate their lights. Detective Romero then testified that they had to cut off the Nissan by coming “in front” of it to make the stop. This placed the cars “face to face,” enabling her to look directly at Andrews. Romero then offered the only evidence linking Andrews to the weapon eventually located under Duncanson’s seat. She testified that: A Assoonas he saw me put a squared look, his eyes opened wide and that is when, he reaching, at that moment I observed what was a gun, a firearm. Q What did he do with the gun? A Hewas giving it to the passenger. Q—.-What was the passenger doing? A Atthat time I was keeping my eyes directly — all I know that I saw the passenger grab hold of the gun and, I guess, he was trying to place it somewhere and I just stood fixed to the defendant, because I didn’t know if he was going to shoot at me or what was going on. Q_. Who, if anybody, focused on the passenger? A Detective Dominguez.Q After you see this firearm passed from the defendant to the co- defendant, what did you do? A As soon as he saw I had my gun drawn all ready, I told my partner, I said the word 55, which it is a term for gun and I immediately ran up to the driver's side and started giving demands. __.Q._And_how_were you. = so, what happened after you gave the_ command? A Please get out of the car. I don’t remember too much, if I opened the door, but I got him out of the vehicle and put him into custody. Feb, 20, 2013 TR, pp. 56-57. Although Detective Romero’s testimony was the only direct evidence linking Andrews to the firearm, Mr. Handfield’s cross examination lasted barely two pages and focused only on issues pertinent to the pending motion to suppress. In fact, Mr. Handfield had earlier advised Judge Rebull that he was not prepared for the probation violation hearing that day, and that he had not been “concentrating on that issue because my concentration was on the motion to suppress.” Mr. Handfield, who had “pled with Judge Rebull to give [him] more time,” was obviously not prepared to cross-examine this witness on the issue pertaining to the probation violation (i.e., Andrews’ alleged possession of the firearm), and he frankly made no effort to do so, Neither the firearm, nor Detective Romero’s claim to have seen it in Andrews’ hand, were even mentioned during Mr. Handfield’s two page “cross-examination.” The State next called Detective Dominguez. He confirmed working as a member of the “take down unit” with Detective Romero and receiving Detective 6Washington’s radio transmission. Detective Dominguez also confirmed cutting off Andrews? vehicle by “placing my passenger’s door in front of his driver's side bumper.” This placed his passenger, Detective Romero, “directly in front of the car.” At this point he and Detective Romero both jumped out the car and, according to Detective Dominguez, he then (i. , after exiting his vehicle) heard Detective Romero “screaming out gun, at which time, I'm observing the passenger [Duncanson] in the vehicle, bending down in the car in the seat.” Detective Dominguez then saw the gun protruding from under the passenger’s seat. The final witness called by the State on February 20" was Ms. Coley, Andrews’ probation officer. Ms. Coley had been supervising Andrews since November 2011, and advised him that he “is not to possess firearms” or be “re- arrested.” After this brief testimony counsel proceeded to argue the merits of the motion to suppress. That motion was then denied based upon Judge Rebull’s finding of “reasonable suspicion to conduct an investigative stop,” because “the officer had probable cause... to believe that the windows of the car.were illegal[ly] tinted and had justification to make a traffic stop based on this probable cause.” The probation violation hearing continued on May 2, 2013. The State briefly recalled Ms. Coley who testified that Andrews had been previously violated “for a new arrest for cannabis possession and also a failure to remain confined to an approved residence.” The State then rested.As his first and only witness Mr. Handfield called Keondre Aquamina, a childhood friend of Andrews. Mr. Aquamina testified that Andrews came to see him in Brownsville early in the evening on January 9, 2012. He later arrived at the arrest scene, secured Andrews’ “phone and his car keys,” and advised Andrews’ mother “ofhis arrest. Mr. Handfield then rested. After both parties rested the State gave its closing argument. Mr. Handfield then began his summation by first trying to discuss certain jail calls that were not introduced into evidence, prompting a predicable objection. Judge Rebull then advised Mr. Handfield that: THE COURT: Okay, well, if its not into evidence ~ if that’s not in evidence, then it’s just argument, and I observe the same rules as the jurors do: what the attomeys say is not evidence. May 2, 2013 TR, p. 51. In response Mr. Handfield asked Judge Rebull to “accept [the recordings] as evidence” because during these recorded calls Andrews “talks about the fact that he would be exonerated once they process it [the gun] because his prints or DNA is not going to come on it, they going to find out who’s the real person, and that he had no idea that the gun was in the car, and that he had no idea where the gun came from....” After repeatedly questioning Mr. Handfield as to why he did not put these recordings into evidence, the court reset the case for the next day “to make sure [it] gets tried correctly and fairly and that all evidence that anybody seeks to present is heard in aproper manner.” The court made clear, however, that “we are going to conclude once and for all with this matter tomorrow. There will be no other evidence. So it is my expectation, in the next 24 hours, that you... will have done whatever [you] need to conclude the presentation of evidence and argument tomorrow.” introduced the recorded jail calls into evidence. He then attempted to discuss the results of a polygraph Andrews allegedly passed which, according to Mr. Handfield, confirmed Andrews did not know “there was a gun in the car at the time of the stop.” This predictably prompted an objection and a request that this representation “be stricken from the record,” causing Judge Rebull to point out that “not only is it not admissible, but evidence hasn’t even been presented that there was a polygraph, that, he passed a polygraph,” and again remind Mr. Handfield that “what a lawyer says is not evidence.” Mr. Handfield then called Andrews as his last witness. He testified that he had gone to Brownsville with Duncanson to visit and catch up with Mr. Aquamina, Andrews also testified that he was “in shock” when an unmarked car pulled up “on the side of us” and a lady “jumped out with her firearm” and demanded that he exit the vehicle. He then opened the door and “threw my hands out.” Andrews testified that he did not have possession of — or pass — a firearm to Duncanson. Nor was he aware there was a firearm in the car. Andrews also testified that he was adamantabout them checking for fingerprints or DNA “because I knew that wasn’t my firearm, and I ain’t know nothing about that firearm being in that car.” He also confirmed that he had voluntarily submitted his DNA and fingerprints. The parties once again proceeded to closing argument with the State first Handfield then began his closing by again questioning the basis for the stop when there had been “no illegal activity.” He then told Judge Rebull that his client’s “DNA is not on the gun. His fingerprints are not on the gun.” He did not, however, introduce these “facts” into evidence. Mr. Handfield then suggested that Detective Romero’s testimony made little sense, emphasizing that: (a) “if he’s driving the car and he’s pulled over and he gives a gun to the passenger, it is no way in heaven’s name that the officer would have been able to see that”; and (b) “He is driving. The police pull him over. Now he holds it [the gun] up so [Officer Romero] he can see it, so he can give it to the passenger? That's absurd.” After closing argument the. court immediately announced its finding, by-a preponderance of the evidence, that “Mr. Andrews was in possession of a firearm; that the object was in his hand.” The court also found that “it [the gun] was so close to being within ready reach and be under the control of Mr. Andrews,” and that “he knew the existence of the firearm in the vehicle.” The court then proceeded to 10sentence “Mr, Andrews to 50 years state prison, with all credit time served.” Andrews" conviction and sentence was affirmed on direct appeal, per curium. II, THE PENDING RULE 3 MOTION Iw his motion for post-conviction relief Defendant claims that Mr. Handfield ~ Was ineffective because: (a) he failed to investigate and introduce evidence that “the gun which was recovered was tested forensically against Mr. Andrews’ known DNAY and he was excluded as a possible contributor; (b) he failed to introduce an audio of the police frequency which significantly undermined Detective Romero's testimony; and (¢) he failed to effectively cross-exam and impeach State’s witnesses and, in particular, Detective Romero. Andrews also argues that Duncanson was “not available” to testify atthe probation violation hearing because he was facing charges atising out of the same incident. Duncanson has since resolved those charges, and has now testified that he brought the firearm into the vehicle and Andrews had no knowledge ofits presence before the stop. IV. GOVERNING LAW A. Ineffective Assistance of Counsel AAs our Supreme Court regularly reminds us, the law governing claims of ineffective assistance of counsel, as set forth in Strickland v. Washington, 466 US. 668 (1984), is well settled: First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably ilcompetent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined, Simmons v. State, 105 So. 3d 475 (Fla. 2012). See also Walker v. State, 88 So. 3d -128.(Ela..2012); Bolin.v. State, A1 So. 34.151-(Fla..2010); Wright v. State, 213 So, 3d 881 (Fla. 2017); Abdool y. State, 42 Fla. L. Weekly $437 (Fla. S. Ct. Apr. 6, 2017); Caylor v. State, 42 Fla. L. Weekly $608a (Fla. S. Ct. May 18, 2017); Ellerbee, Jr. v. State, 42 Fla. L. Weekly $973 (Fla. S. Ct. Dec. 17, 2017). In applying the first Strickland prong, the Defendant “must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards.” Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986). In assessing whether the defendant has demonstrated error “so serious that counsel was not functioning as the “counsel” guaranteed defendant by the Sixth Amendment,” Strickland at 681, “{jludicial scrutiny of counsel's performance must be highly deferential and there is a strong presumption that trial counsel's performance was not ineffective.” Id., citing Strickland at 689. Rather, “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” /d. Furthermore, “[s]trategic decisions do not constitute ineffective assistance of counsel if alternative courses 12have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000). [As for the second Strickland prong, a defendant need not show “that counsel's deficient conduct more likely than not altered the outcome” of the proceeding, but rather “a probability sufficient to undermine confidence in [that] outcome.” Porter v. McCollum, 558 U.S. 30 (2009) (quoting Strickland, 466 U. S. at 693 — 94). In | other words, the defendant must prove that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Hoskins v, State, 75 So. 3d 250, 254 (Fla. 2011) (quoting Strickland, 466 U. S. at 694), See also Valle v. State, 705 So. 2d 1331 (Fla. 1997). This “prejudice” prong must be evaluated in the context of the entire “record of the case.” State v. Anderson, 42 Fla. L. Weekly D746 (Fla. Sth DCA Mar. 31, 2017). B. Newly Discovered Evidence To succeed ona Rule 3 claim based on “newly discovered evidence” a defendant must clear two hurdles: First, the asserted facts “must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence.” Hallman, 371 So.2d 482 (Fla..1979), abrogated on other grounds, Jones v. State, 591 So. 2d 911 (Fla. 1991). Second, “the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.Torres-Arboleda v. Dugger, 636 So. 2d 1321, 324-25 (Fla. 1994) citing Jones, 591 So. at 915, Furthermore, if the court finds that this evidence “could have been found with the exercise of due diligence, it must then determine whether the failure of [trial counsel] to discover the evidence was an omission that fell below a standard of reasonableness under prevailing professional norms.” Dwyer v. State, 743 So. 2d 46, 49 (Fla. Sth DCA 1999) (quoting Jancar v, State, 711 So. 2d 143, 145 (Ela. 2d DCA 1998). "If so, the [trial] court must also determine whether the oversight probably affected the outcome of the proceedings.” Id. V. ANALYSIS A. Ineffective Assistance Based upon the evidence presented at the evidentiary hearing this Court has little difficulty concluding that Mr. Handfield abjectly failed to provide Andrews with the effective assistance of counsel guaranteed by the Sixth Amendment. First, and on amacto level, itis obvious that he was not prepared for the probation hearing generally or to cross-examine the State’s key witness, Officer Romero. In fact, as mentioned earlier, this witness was not “cross examined” at all. And there was clearly fertile ground to plow. For example, Mr. Handfield never asked the witness anything about her ability to actually visualize what she claimed to have seen. Was it dark; how far was she from Andrews’ car; were the headlights from Andrews’ vehicle shining in her 14direction; and what did the weapon look like? Mr. Handfield also failed to pin down the fact that Officer Romero supposedly saw the gun in Andrews’ hand while she was still inside her vehicle, and challenge her testimony that despite seeing a gun in Andrews’ hand, she and her partner chose to exit their police cruiser and approach both sides of the Maxima without any cover; an unlikely scenario. He also failed examine Officer Romero on a number of inconsistencies between her testimony and that of Officer Dominguez. Turning to more discrete failures, Mr, Handfield inexplicably failed to introduce into evidence a report confirming that: (a) testable DNA was located on the weapon; and (b) Andrews was not a possible contributor. It is one thing for a defendant to point out that the State failed to itself present inculpatory DNA evidence as part of its case, but it is quite another for defense counsel to actually prove that testable DNA specimens were recovered and that the defendant was not a possible source. Yet Mr. Handfield, armed with a report excluding his client as a source of DNA secured from the weapon, failed to introduce this exculpatory evidence. This “decision” — assuming one was consciously made — cannot be chalked up to | “strategy,” and was unreasonable given the circumstances presented.” | 2 When the Court asked Mr. Handfield why “Judge Rebull was not advised that there was DNA found on the gun, tested, compared to Mr. Andrews, and it was not a match,” he responded “[wlell, at this point, I can’t tell you why, Judge.” Dec. 19, 2017 TR, p. 151 15Also unreasonable was Mr. Handfield’s decision not to introduce ~ or cross examine Officer Romero with ~ an audiotape capturing her “live” reporting of the incident — an audio which undermines her testimony. Throughout the duration of that recording Officer Romero is as calm as the proverbial cucumber, and nothing in flection suggests any urgency or hint of danger. To the contrary, the Officer at one point calmly reports that a “55” (gun) was located, and her “matter of fact” demeanor is consistent with Andrews’ claim (and Andrews’ and Duncanson’s testimony) that the gun was found under the passenger seat only affer he and Duncanson were ordered out of the vehicle. But Mr. Handfield never introduced the recording or even bothered to ask Officer Romero at what point during the stop and arrest she first reported the “55.” Without belaboring the point, the Court concludes that Mr. Handfield’s acts and omissions were “outside the broad range of reasonable competent performance under prevailing professional standards,” and that Andrews has demonstrated error 2 At the Rule 3 hearing Mr. Handfield candidly acknowledged that the audio recording is “inconsistent with the officer's testimony about her seeing the gun in the hands of {his} client.” Dec. 19, 2017 TR, pp. 118, 120-121, But he did not introduce this material evidence because in his view Judge Rebull believed the officer and “(ajnything else ‘was not going to matter” ~ “it would not have made. difference.” Id, at 121-122, In Mr. Handfield’s view, “the only thing Judge Rebull wanted to hear, was, once the officer said that I saw him pass the gun on, that’s all that mattered Anything else was not going to matter, whatsoever.” Id, a 122. See also Jan. 26,2018 TR, p. 17 (U dih’t bring this, evidence to the court’s attention because “I didn’t believe it made a difference because the Judge’s mind was made up bbased upon the Judge believling] the testimony of the female officer"). While Mr. Handfield may have “believed” that Judge Rebull had made up his mind, and that he would not be swayed by this evidence, it takes no citation of authority to confirm that this subjective “belie? did not justify a failure to introduce evidence which clearly “undercut” Ofticer Romero's testimony. Jd, at pp. 122-123. 16“so serious” that Mr. Handfield “was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Strickland, at 681.4 Turning to the second Strickland prong, the Court also finds that Mr. Handfield’s lackluster performance resulted in “prejudice.” The Court has — as it must — evaluated this requirement in the context of the entire “record of the case,” Anderson, supra, and concludes that counsel’s errors here, both individually and certainly collectively, “so affected the faimess and reliability of the proceeding that confidence in the outcome is undermined,” Simmons, supra, and finds that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Hoskins, supra. B. Newly Discovered Evidence Atthe time of Andrews’ probation hearing Duncanson was unwilling to testify because he was also facing a charge of unlawful possession of the same firearm, and “was entitled to invoke his Fifth Amendment privilege against self-incrimination.” See Porter v.. State, 439 So. 2d 298 (Fla. 3d DCA 1983). His. case -has- since concluded, and he has now testified that he brought the weapon into the vehicle “Mr. Handfield has earned an outstanding reputation over years of practice, and this Court knows firsthand that he is, ‘a. dedicated end skilled practitioner who represents clients zealously and competently. It is apparent from the record (including his testimony at the Rule 3 hearing) thet Mr. Handfield was disturbed by this case, describing it as “one of the most egregious injustice that I have ever seen in my 36 years as atrial awyer....” Dee. 19, 2017 TR, p. 105. It also is clear that Mr. Handfield was frustrated by an inability to secure what he thought would be a reasonable plea offer fora client who he believed to be completely innocent. Perhaps Mr. Handfield believed he would eventally secure a favorable plea, or maybe he placed too much confidence in his motion to suppress. What is clear, however, isthat Mr. Handfield did not prepare an adequate defense on the merits. Given Mr. Handfeld’s long and distinguished ‘career this transgression was no doubt an outlier. 17concealed in his pocket; that Andrews had no knowledge that he was carrying the weapon; and that he attempted to hide the weapon under his [i.e., the passenger's] seat when the car was stopped. This exculpatory testimony was unavailable at Andrews’ hearing, and binding precedent confirms that it qualifies as “newly discovered evidence” for purposes of a Rule 3.850 motion. See Brantley v. State, 912 So. 2d 342, 343 (Fla. 3d DCA 2005) (“Florida courts have held that evidence can be treated as newly discovered where it is ‘based on newly available testimony of defendants who were previously unwilling to testify””); Totta v. State, 740 So. 2d 57 Fla. 4th DCA 1999); State v. Gomez, 363 So. 2d 624 (Fla. 3d DCA 1978). As Duncanson’s testimony undeniably qualifies as “newly discovered evidence,” the question then becomes whether it entitles Andrews’ to post- conviction relief, an issue that requires the Court to carefully “evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the hearing],” Rutherford v. State, 926 So. 2d 1100, 1108 (Fla. 2006), and consider, among other things, whether the “new” evidence goes to the merits or constitutes impeachment; whether the “new” evidence is cumulative to other evidence in the case; the “materiality” and “relevancy” of the “new” evidence; and “any inconsistencies in the newly discovered evidence.” Tompkins v. State, 980 So. 2d 451 (Fla. 2007). And in the context of a co-defendant’s testimony, the Court should“test the credibility” of the newly discovered (or available) exculpatory statements. Nordelo v. State, 93 So. 3d 178 (Fla. 2012). This Court has carefully evaluated the credibility and weight of Duncanson’s testimony in light of the evidence introduced at Andrews’ probation hearing and ‘concludes that it warrants post-conviction relief. Andrews’ possession (or knowledge) of the weapon, and the State’s case rested largely — if not entirely — on the testimony of Officer Romero — testimony that was clearly subject to impeachment. Duncanson has now credibly testified that he brought the gun into the vehicle without Andrews’ knowledge; that Andrews never possessed the weapon; and that [Duncanson] never told Andrews he had the gun in the car. This exculpatory testimony clearly “goes to the merits,” it is not cumulative, and it is highly “material” and “relevant” on the issue dispositive of Andrews’ guilt or innocence. The State does not dispute that Duncanson’s testimony qualifies as “newly discovered evidence.” Nor does the State challenge its obvious exculpatory nature or its materiality. Rather, the State simply insists that Duncanson should not be believed, pointing out that when he took his plea he “proffered to an A-Form” which, among other things, recited that Andrews handed him the weapon.’ According to * Duncanson pled guilty to the new law charge and admitted violating probation. His probation was revoked and he received a six (6) year prison sentence as a habitual offender with a three (3) year minimurm mandatory for possessing a firearm, See August 22, 2013 Transcript, pp. 5-6. As part of his plea Duncanson was asked whether he “had 19the Assistant State Attomey who handled his plea, Duncanson was unwilling to implicate Andrews. So the State attempted to secure indirectly what it was unable to secure directly, insisting — as a condition of the plea~ that Duncanson “proffer to the A-Form” — a commonly employed ritual whereby a defendant will be asked to read the arrest form and attest that the facts recited are “true.’ incanson did just that as a condition to his plea and, as a result, the State now insists that he “swore” Andrews had possession of — and passed him — the weapon. Duncanson, however, says that he believed he was swearing only to the truth of the allegations directed at him — not Andrews; that he never understood that he was implicating Andrews by “profifering” to the arrest form; and that he had no intention of implicating Andrews when he took his plea. While the State may take comfort in the fact that a defendant who “proffers” to an arrest form will be subject to impeachment should he later attempt to exonerate aco-defendant, this protocol is not particularly useful. If the State wants a defendant to implicate a co-defendant as a part of a plea it should have the defendant do so by way of clear and direct testimony, not by way of a blanket “proffer” to an arrest form containing pages of factual allegations levied at a number of different suspects. And if, as in this case, a defendant refuses to implicate a co-defendant, the State can either accept the plea knowing that the defendant may later attempt to exculpate others, iewed the fects ofthe A-Form with your attorney,” and whether these “facts” were “true and correet.” He answered “yes” to both questions. 1. at p. 18. 20refuse to go forward, or do what it often does — and what it did here: settle for the “next best thing” - a blanket “proffer.” But having a defendant “proffer to the A- Form” in an attempt to secure indirectly what the State could not secure directly does little more than create a blurred record. In any event, at re-trial the State will certainly be able to cross-examine Duncanson on his prior “proffer” [as it did at the Rule 3 hearing], and argue that it is contrary to his current testimony. But this Court declines the State’s invitation to completely discredit Duncanson’s exculpatory evidence merely because he “proffered” to an arrest form as part of his plea colloquy. The Court finds that “newly discovered evidence” in the form of Duncanson’s exculpatory testimony would probably produce an acquittal on re-trial. Jones v. State, 591 So. 24911 (Fla. 1991). VL CONCLUSION This Court obviously does not know whether Andrews ever possessed — or was “‘aware-of” — the-weapon-found under the passenger-seat-of the vehicle he and. Duncanson occupied. What it does, however, know is that Andrews was convicted and sentenced to fifty (50) years in prison in a proceeding infected by his counsel’s failure to perform consistent with prevailing professional norms, and that Andrews was prejudiced as a result. The Court also concludes that newly discovered 21exculpatory evidence — which was unavailable at the time of trial - warrants a “second look” at this case. It is therefore ORDERED: 1. Andrews’ Motion for Post-Conviction Relief is GRANTED; 2. Andrews’ conviction for violating the terms of his probation and his resulting fifty (50) year prison sentence are VACATED; 3. This matter is set for a status/plea hearing on March 19, 2018 at 8:30 a.m. before the undersigned at 1351 NW 12 Sireet, Courtroom 4-5, Miami, Florida 33125. DONE AND ORDERED in Chambers at Miami-Dade County, Florida this Quad day of February, 2018, Circuit Court Judge Mary Emst, Esquire maryernst@miamisao.com Daniel Tibbitt, Esquire dan@tibbittlaw.com Elibet Caballero, Esquire ecaballero@pdmiami.com 22