LEROY HAMPTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hampton appealed the denial of his Rule 3.850 motion claiming ineffective assistance of counsel. The court affirmed the denial, finding that Hampton's first claim was conclusory and failed to meet the required pleading standard, while his second claim regarding failure to request a lesser included offense instruction lacked merit because the evidence established the theft value exceeded $100.
The court affirmed the denial of the Rule 3.850 motion. The first claim failed because it was conclusory and did not meet the detailed pleading requirement under the four-factor test in Knight v. State. The second claim failed on the merits because the record established that the stolen goods exceeded $100 in value, making the lesser included offense unavailable.
[1] A claim of ineffective assistance of counsel must be detailed in the appropriate pleading to satisfy the first factor of the four-factor test for ineffectiveness.
[2] A failure to request a lesser included offense instruction, when appropriate and objected to, is deemed harmful error.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a claim of ineffectiveness "be [*1155] detailed in the appropriate pleading."”
Establishes the pleading standard required under the Knight v. State four-factor test for ineffective assistance claims.
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Join FLexlaw to unlock all legal intelligenceHampton was convicted of burglary, grand theft, and resisting arrest with violence. He filed a Rule 3.850 motion alleging his counsel was ineffective …
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PER CURIAM.
Hampton appeals the denial of his Rule 3.850 motion, which alleged his counsel had ineffectively assisted him at his trial. Hampton had earlier raised the same issue on direct appeal in Hampton v. State, 396 So. 2d 1236 (Fla. 1st DCA 1981), in which we per curiam affirmed on the authority of State v. Barber, 301 So. 2d 7 (Fla. 1974), requiring a defendant to raise such issue via a 3.850 motion.
Hampton specifically alleged that his counsel was ineffective for two reasons: (1) Counsel “failed to effectively cross-examine [certain] state witnesses,” and (2) counsel “erroneously believed that he could not request an instruction on lesser offenses and therefore he did not request a lesser and it was not preserved for [his] appeal.” As to the first ground alleged, we agree that the conclusory nature of the claimed deficiency is such that it does not meet the first factor in the four-factor test, required in Knight v. State, 394 So. 2d 997, 1001 (Fla. 1981), that the claim of ineffectiveness “be detailed in the appropriate pleading.” The second assertion, however, on its face alleges a serious deficiency, since a failure to give a lesser included offense once removed, upon appropriate objection, is deemed harmful error. See State v. Abreau, 363 So. 2d 1063 (Fla. 1978). Hampton specifically alleged that he was convicted of burglary, grand theft, and resisting arrest with violence. The trial court’s order of denial stated that the second ground was without merit because there was no dispute at trial that the value of the goods which were taken was more than $100.00. Although the record in the instant case did not include a transcription of the trial proceedings which conceivably may have supported the trial court’s order, we have nevertheless reviewed the record in the prior appeal, and it does in fact show that the value of the goods stolen was in excess of $100. We are of course permitted to take judicial notice of the record of a prior appeal involving the same case. See McNish v. State, 47 Fla. 69, 36 So. 176 (1904).
Accordingly, the order denying the motion to vacate is
AFFIRMED.
MILLS, ERVIN and LARRY G. SMITH, JJ., concur.
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Citator
Cited By
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Oliver v. State, 453 So. 2d 866 (Fla. 1st DCA 1984)…ined as the result of an unlawful arrest and seizure. The order appealed from is AFFIRMED. JOANOS and ZEHMER, JJ., concur. . We are permitted to take judicial notice of the record in prior appeals of the same case to this court. Hampton v. State, 403 So. 2d 1154 (Fla. 1st DCA 1981).…
Authorities Cited
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- State v. Barber, 301 So. 2d 7 (Fla. 1974)
- McNish v. State, 47 Fla. 69 (Fla. 1904)