County Criminal Court:  CRIMINAL PROCEDURE – Postconviction Relief – rule 3.850 – trial court did not err in summarily denying motion without conducting evidentiary hearing – motion raised claim of newly discovered evidence in that officer who administered field sobriety tests subsequently accused fellow officers of rape – trial court found newly discovered evidence to be “obviously immaterial” to facts of case – no evidentiary hearing required in this context – Order affirmed.  Rivas v. State, No. 02-21300 (Fla. 6th Cir. App. Ct. April 28, 2003).








vs.                                                                          APPEAL NO:  CRC02-21300CFANO






Opinion filed April ____, 2003.


Appeal from a decision of the

County Court for Pinellas County;

Michael F. Andrews, Judge.


Harvey G. Hesse III, Esquire

Attorney for Appellant.


Holly Osgood, Esquire

Assistant State Attorney.




Emil Rivas appeals from the trial court’s summary denial of his motion for postconviction relief, filed pursuant to Fla. R. Crim. P. 3.850.  In his four-page brief on appeal, he argues that the trial court erred in failing to conduct an evidentiary hearing on his motion.  Additionally, he asserts that “the [postconviction] motion requested the court to allow the defendant to withdraw his plea entered March 6, 2003 due to newly discovered evidence.  The motion was not seeking withdrawal of that plea based on a Brady violation, as the trial court’s order seems to suggest.”  As explained below, we agree with the trial court’s summary denial of the motion, and affirm.

In the lower court, Rivas pleaded no contest to driving under the influence.  He was sentenced to 12 months probation, assessed various fines and costs, and his driver’s license was suspended for 6 months.  In his motion before the trial court, Rivas stated that “the relief sought is withdrawal of the plea based upon the plea being involuntary.”  In sum, he argued that subsequent to entering his plea, he discovered that the arresting officer, Brie Bicknell, accused several fellow officers of raping her, which sparked an investigation by the St. Petersburg Police Department.  He argued that he was unable to use this information at the motion to suppress hearing.

A review of the motion to suppress transcript reflects that Rivas argued that he was coerced into the breathalyzer tests.  Briefly, the facts adduced at the suppression hearing were as follows.  Rivas was stopped in his vehicle by Officer Allan on June 9, 2001 at 12:14 a.m. for failing to maintain a single lane, after which Officer Allan, observing signs of impairment, radioed for Officers Bicknell and Huntington.  Upon arrival, Officer Bicknell, supervised by Officer Hunnington, administered the field sobriety tests (FST), which were videotaped by Officer Egulf.  Based on his performance on the FST’s, Rivas was then handcuffed and escorted into the back of a mobile van containing an intoxilyzer machine, which was operated by Officer Egulf.  Officer Egulf read Rivas the implied consent warning, after which Rivas refused to take the breath test.  Officer Egulf read the implied consent warning again, further conversation ensued concerning the license suspension of one year for refusing to take the test, Rivas requested the presence of an attorney, and Officer Egulf told him that he did not have the right to an attorney for the breath test.  Rivas eventually consented to the breath test, which he failed. 

Rivas and Officer Egulf were the only two witnesses at the suppression hearing; Officer Bicknell did not testify. [1]   By written order signed March 6, 2002, the trial judge denied the motion, after which Rivas entered his no contest plea.  His postconviction motion, and the trial court’s summary denial at issue here, followed.

Ordinarily, an evidentiary hearing is required on claims of newly discovered evidence unless the claims are legally insufficient or refuted by the record.  In this case, the trial court did not conduct a hearing.  “To support summary denial without a hearing, a trial court must either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion.”  McLin v. State, 827 So. 2d 948, 954 (Fla. 2002) (quoting Anderson v. State, 627 So. 2d 1170, 1171 (Fla. 1993)).  In its order summarily denying the motion, the trial court stated its rationale:

Defendant fails to make a valid claim for relief.  Defendant suggests that he would not have entered a plea had the State furnished him with information about the aforementioned internal investigation by the St. Petersburg Police Department.  The State argues, however, and the Court agrees, that they were not obligated to provide Defendant with that information.  The allegations made by Officer Bicknell, against fellow officers, were independent from and in no way related to the charge of driving under the influence brought against Defendant.  Because the allegations and investigation were not material to Defendant’s case, the State was not required to disclose the information.  See Breedlove v. State, 580 So. 2d 605 (Fla. 1991).  Even if the State had disclosed information about the internal investigation, Defendant fails to show how it would have been helpful to his case.  There is no indication that any of the evidence from the investigation would have been admissible at trial or the hearings on his motions.  If Defendant suggests that the Officer’s credibility as a witness was somehow tainted by the allegations that she made and subsequent investigation, he fails to demonstrate the connection. 


In McLin, the Florida Supreme Court stated “[a]s the Fourth District has correctly pointed out, there may be cases where the newly discovered evidence is ‘obviously immaterial’ to the verdict.”  McLin, 827 So. 2d at 956 (citing Robinson v. State, 736 So. 2d 93 (Fla. 4th DCA 1999)).  In such cases, an evidentiary hearing is not required.  Robinson, 736 So. 2d at 93 (“After conducting the same review, we cannot conclude that [the defendant’s] affidavit was inherently incredible or that his trial testimony was obviously immaterial to the verdict, so as to allow the trial court to reject his recantation without holding an evidentiary hearing.”); Stephens v. State, 829 So. 2d 945, 946 (Fla. 1st DCA 2002) (“these determinations require an evidentiary hearing . . . unless the affidavit is inherently incredible or obviously immaterial to the verdict.”); Kendrick v. State, 708 So. 2d 1011 (Fla. 4th DCA 1998) (“A defendant is not automatically entitled to an evidentiary hearing on filing a motion asserting newly discovered evidence.”).

Assuming Rivas’ allegations to be true, as we are required to do, we agree with the trial court that the accusations levied by Officer Bicknell are clearly immaterial to Rivas’ case.  His motion to suppress centered on the conduct of Officer Egulf in the rear of the mobile van, and whether or not that conduct was coercive.  It did not concern Officer Bicknell’s administration of the FST’s.  Moreover, Officer Bicknell did not even testify at the suppression hearing.  Consequently, any “newly discovered information” as to her accusation of rape against fellow officers (which did not name any of the other officers involved in this case) is clearly immaterial to Rival’s nondispositive motion to suppress. [2]  

Moreover, the “newly discovered information” is immaterial to Rival’s plea, and does not render his plea involuntary.  The transcript attached to the trial court’s summary denial reflects a thorough plea colloquy during which the defendant tendered a voluntary and intelligent plea.  This is not a case where the trial court, on summary denial, found the allegations to be “probably untruthful,” nor is it a case where the trial court made a credibility determination without a hearing.  Instead, the trial court found the “newly discovered information,” or alternatively the information that was withheld, to be clearly immaterial.  This is a determination that can be made without an evidentiary hearing.  Accordingly, summary denial was proper.


DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this _______ day of April, 2003.



                                                                        JOHN A. SCHAEFER, Circuit Judge




                                                                        W. DOUGLAS BAIRD, Circuit Judge




                                                                        NANCY MOATE LEY, Circuit Judge


cc:        Harvey G. Hesse III, Esquire

            State Attorney’s Office

[1]   Rivas asserts that he took a telephonic statement from Officer Bicknell prior to filing his motion to suppress, in which she reportedly said that Rivas’ case was “borderline,” that Rivas refused the breath test at least three times, and that Office Egulf would occasionally get upset when people refused the breath test.  Though she was subpoenaed, Officer Bicknell was unavailable at the motion to suppress hearing “due to her medical leave status.”

[2]   Defense counsel, at the change of plea/sentencing hearing, stated:  “He [Rivas] has been advised that the motion to suppress in this case, as it stands right now, in this no contest plea, is not dispositive of the case, and therefore, is not subject to appellate matters at this time.”