JERRY BUCK GUNN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gunn, convicted of robbery in 1966 and sentenced to 20 years imprisonment, sought collateral relief through a motion to vacate. The trial court summarily denied the motion without hearing or explanation. The appellate court remanded because the motion, fairly read, raised the cognizable issue of ineffective assistance of counsel, which requires evidentiary development.
The trial court improperly summarily denied the motion without an evidentiary hearing because the motion fairly raised the cognizable issue of ineffective assistance of counsel at trial, which is an appropriate matter for collateral relief. A trial court denying a 3.850 motion must either attach portions of the case file refuting the allegations or conduct an evidentiary hearing.
[1] A motion to vacate a conviction may raise the issue of ineffective assistance of counsel, which is appropriate for collateral relief.
[2] A trial court summarily denying a motion to vacate must attach portions of the case file and record refuting the allegations or conduct an evidentiary hearing.
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Join FLexlaw to unlock all legal intelligence“Denial of effective assistance of counsel at trial or plea is an issue appropriate for collateral relief.”
Establishes that ineffective assistance of counsel is a cognizable ground for a 3.850 motion, distinguishing it from pre-trial errors that should have been raised on direct appeal.
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Join FLexlaw to unlock all legal intelligenceGunn was convicted by jury trial in 1966 of robbery and sentenced to twenty years. In 1977, he filed a pro se motion to vacate under Florida Rule of C…
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[*106] COBB, Judge.
The appellant, Jerry Buck Gunn, was convicted by jury trial in 1966 of robbery and sentenced to twenty years imprisonment. An unsuccessful appeal from that conviction was taken.
In 1977 Gunn filed a pro se motion to vacate pursuant to Fla.R.Crim.P. 3.850, which was summarily denied without hearing. No portion of the files and records was attached to the order. Instead, the order recited that the trial court “has carefully studied the Motion and the files and records in the case and finds that they conclusively show the prisoner is entitled to no relief.” The order does not purport to find the motion legally insufficient on its face. See, e. g., State v. Reynolds, 238 So. 2d 598 (Fla.1970) and Clements v. State, 340 So. 2d 1183,(Fla. 4th DCA 1976).
The state argues that the motion sets forth grounds relating only to pre-trial matters, such as denial of speedy trial and improper line-up, which should have been raised on direct appeal. Therefore, the state contends that the motion was facially defective and properly denied.
We believe a fair reading of this pro se motion raises the issue of effective assistance of counsel at trial. The motion sets forth in extenso the alleged pre-trial errors —i. e., improper line-up, denial of speedy trial — and also specifically asserts that “denial of effective assistance of counsel prevented these facts, matters and grounds to be on appeal . . . ”
Denial of effective assistance of counsel at trial or plea is an issue appropriate for collateral relief. Payne v. State, 362 So. 2d 688 (Fla. 2d DCA 1978); Robinson v. State, 352 So. 2d 936 (Fla. 1st DCA 1977); Chambers v. State, 337 So. 2d 845 (Fla. 2d DCA 1976); Hill v. State, 297 So. 2d 58 (Fla. 2d DCA 1974); Lay v. State, 224 So. 2d 369 (Fla. 4th DCA 1969).
This cause, therefore, is remanded to the trial court under a temporary relinquishment of jurisdiction, for forty-five days, with instructions (a) to attach that portion of the case file and record which refutes appellant’s allegations; or (b) to conduct an evidentiary hearing and, then, either grant or deny the relief sought by appellant.
REMANDED WITH INSTRUCTIONS.
DAUKSCH, C. J., and SHARP, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Meeks v. State, 382 So. 2d 673 (Fla. 1980)…e considered in a rule 3.850 motion, the trial judge reviewing the motion must either attach that portion of the case file or record which conclusively shows that the prisoner is entitled to no relief or grant an evidentia-ry hearing. Gunn v. State, 378 So. 2d 105 (Fla. 5th DCA 1980); Giles v. State, 363 So. 2d 164 (Fla. 3d DCA 1978); Payne v. State, 362 So. 2d 688 (Fla. 2d DCA 1978). Based on our review of the record presented to this Court, we cannot say that appellant’s specific allegations of ineffective…
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VAN Bever v. State, 405 So. 2d 474 (Fla. 5th DCA 1981)…cient, the .trial court must either attach that portion of the case file or record which conclusively shows that the prisoner is not entitled to relief, or must grant an evidentiary hearing. Meeks v. State, 382 So. 2d 673 (Fla. 1980); Gunn v. State, 378 So. 2d 105 (Fla. 5th DCA 1980); Payne v. State, 362 So. 2d 688 (Fla. 2d DCA 1978). Though his motion lacks the artfulness of an attorney’s hand, Van Bever alleges two prima facie grounds for relief from the plea and sentence. “Ground Two” alleges that at the t…
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DeSANTIS v. State, 400 So. 2d 525 (Fla. 5th DCA 1981)…81) [1981 F.L.W. 765]; Rice v. State, 400 So. 2d 461 (Fla. 5th DCA, 1980); Brown v. State, 390 So. 2d 447 (Fla. 5th DCA 1980); Battle v. State, 388 So. 2d 1323 (Fla. 5th DCA 1980); Gunter v. State, 380 So. 2d 1198 (Fla. 5th DCA 1980); Gunn v. State, 378 So. 2d 105 (Fla. 5th DCA 1980). The motion of appellant is sufficient on its face and seeks to correct what appellant says is an illegal sentence under Villery v. Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla.1981). The fact that appellant, p…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Madison Lee Reynolds, 238 So. 2d 598 (Fla. 1970)
- Payne v. State, 362 So. 2d 688 (Fla. 2d DCA 1978)
- Harlan Glen LAY v. State, 224 So. 2d 369 (Fla. 4th DCA 1969)
- Chambers v. State, 337 So. 2d 845 (Fla. 2d DCA 1976)
- Hill v. State, 297 So. 2d 58 (Fla. 2d DCA 1974)
- Clements v. State, 340 So. 2d 1183 (Fla. 4th DCA 1976)
- Hall v. State, 352 So. 2d 936 (Fla. 2d DCA 1977)