JOHN HENRY BATTLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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An inmate appealed the summary denial of his Rule 3.850 motion seeking collateral relief based on ineffective assistance of counsel and an allegedly impermissibly suggestive photo identification procedure. The Florida Fifth District Court of Appeal reversed and remanded, finding that the ineffectiveness allegations were sufficiently specific to warrant an evidentiary hearing.
The court held that ineffective assistance of counsel claims must be treated the same regardless of whether counsel was state-provided or privately retained, and that where such allegations are not vague or conclusory, an evidentiary hearing or production of refuting record material is required rather than summary denial.
[1] A motion to vacate a judgment and sentence is defective where the ground alleged was known to the defendant at the time of sentencing and was properly presentable on a di…
[2] A motion to vacate a judgment may not be used as a substitute for appeal when the matter forming the basis of the motion was known to the defendant at the time of trial.
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Join FLexlaw to unlock all legal intelligence“when an issue of ineffective assistance of counsel is raised, there must be no distinction between state-provided and privately retained counsel”
Establishes the controlling constitutional standard that applies equally to all counsel, citing Cuyler v. Sullivan
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Join FLexlaw to unlock all legal intelligenceBattle, an inmate at Polk Correctional Institute, filed a pro se notice of appeal challenging an order that summarily denied his Rule 3.850 motion. He…
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FRANK D. UPCHURCH, Judge.
Appellant, while an inmate at Polk Correctional Institute, filed pro se a notice of appeal to review an order summarily denying relief under Rule 3.850, Florida Rules of Criminal Procedure. Although the notice was filed one day late, this court granted appellant the right to take a belated appeal. See Hollingshead v. Wainwright, 194 So. 2d 577 (Fla.1967), cert. denied, 391 U.S. 968, 88 S.Ct. 2040, 20 L.Ed.2d 882 (1968).
Appellant contends his fourteenth amendment right to due process was violated when an impermissibly suggestive photo pack was exhibited to witnesses prior to the line — up. A motion to vacate a judgment and sentence is defective where the ground alleged was known to the defendant at the time of sentencing and was properly presentable on a direct appeal which defendant did or could have taken. Johnson v. State, 364 So. 2d 118 (Fla. 1st DCA 1978); Burau v. State, 353 So. 2d 1183 (Fla. 3d DCA 1977). If the matter forming the basis of the motion to vacate was known to the defendant at the time of trial, it will not support a collateral attack on the judgment of conviction since such a motion may not be used as a substitute for appeal. Burau at 1185.
Appellant contends this ground was not preserved for direct appeal because of the alleged incompetency of his privately retained counsel. It has recently been held by the United States Supreme Court that when an issue of ineffective assistance of counsel is raised, there must be no distinction between state-provided and privately retained counsel. Cuyler v. Sullivan, ___ U.S. ___, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). In Spencer v. State, 389 So. 2d 652 (Fla. 1st DCA 1980), the First District Court of Appeal applied this rule of constitutional law although it found that the allegations in appellant’s Rule 3.850 motion concerning the ineffectiveness of his retained counsel were so vague and conclusory as to obviate the need for an evidentiary hearing on the issue.
Such vagueness does not exist in the present case and since denial of effective dssistance of counsel is an issue appropriate for collateral relief, Gunn v. State, 378 So. 2d 105 (Fla. 5th DCA 1980), this matter must be remanded to the trial court with instructions (a) to attach that portion of the record which refutes the allegations, or (b) to conduct an evidentiary hearing. Meeks v. State, 382 So. 2d 673 (Fla.1980); Gunn v. State.
The order denying relief is quashed and this cause is remanded with instructions.
COBB and SHARP, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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McCRAE v. State, 437 So. 2d 1388 (Fla. 1983)…atters which could have been presented on appeal are similarly held to be foreclosed from consideration by motion under the Rule. E.g., Demps v. State, 416 So. 2d 808 (Fla.1982); State v. Jackson, 414 So. 2d 281 (Fla. 4th DCA 1982); Battle v. State, 388 So. 2d 1323 (Fla. 5th DCA 1980); Tyner v. State, 363 So. 2d 1165 (Fla. 1st DCA 1978); Koedatich v. State, 287 So. 2d 738 (Fla. 3d DCA 1974); Yanks v. State, 273 So. 2d 401 (Fla. 3d DCA 1973), cert. denied, 277 So. 2d 288 (Fla.1973); McGriff v. State, 259 So. 2d…
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DeSANTIS v. State, 400 So. 2d 525 (Fla. 5th DCA 1981)…l be attached to the order.” Rule 3.850, Fla.R. Crim.P. Benton v. State, 401 So. 2d 1114 (Fla. 5th DCA, 1981) [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 V…
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Williams v. State, 447 So. 2d 442 (Fla. 5th DCA 1984)…7 (Fla.1981). FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur. . Williams v. State, 110 So. 2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). . E.g., Young v. State, 397 So. 2d 1159 (Fla. 5th DCA 1981); Battle v. State, 388 So. 2d 1323 (Fla. 5th DCA 1980); Gunn v. State, 378 So. 2d 105 (Fla. 5th DCA 1980). .E.g., Knight v. State, 394 So. 2d 997 (Fla.1981); Meeks v. State, 382 So. 2d 673 (Fla.1980). .Evidence as to a second "victim” was permitted under the “Williams Rule." The de…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cuyler v. Sullivan, 446 U.S. 335 (U.S. 1980)
- Cleveland Hollingshead v. Louie L. Wainwright, 194 So. 2d 577 (Fla. 1967)
- Meeks v. State, 382 So. 2d 673 (Fla. 1980)
- Lucion Spencer v. State, 389 So. 2d 652 (Fla. 1st DCA 1980)
- Gunn v. State, 378 So. 2d 105 (Fla. 5th DCA 1980)
- Burau v. State, 353 So. 2d 1183 (Fla. 3d DCA 1977)
- Mayes v. Vincent, 391 U.S. 968 (U.S. 1968)
- Evans v. United States, 391 U.S. 968 (U.S. 1968)
- Michael v. Sealy, 353 So. 2d 1183 (Fla. 1st DCA 1977)
- Johnson v. State, 364 So. 2d 118 (Fla. 1st DCA 1978)