JEFFREY BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brown appealed the summary denial of his Rule 3.850 post-conviction motion alleging ineffective assistance of counsel. The court reversed and remanded, finding that Brown alleged prima facie grounds for relief and that the trial court erred in denying the motion without either conducting an evidentiary hearing or attaching portions of the record that conclusively refuted his allegations.
The trial court erred by summarily denying the motion. When a defendant alleges prima facie grounds for relief under Rule 3.850, the trial court must either conduct an evidentiary hearing or attach relevant portions of the file and record that conclusively refute the allegations.
[1] A trial court errs by denying a motion for post-conviction relief without conducting an evidentiary hearing or attaching relevant portions of the file and record when the…
[2] A motion for post-conviction relief alleging ineffective assistance of counsel establishes a prima facie ground for relief.
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Join FLexlaw to unlock all legal intelligence“Because Brown alleged a prima facie ground for relief, i.e., ineffective assistance of counsel, the trial court erred by denying the motion without conducting an evidentiary hearing or without attaching relevant portions of the file and record.”
Establishes the core holding that summary denial was improper when prima facie grounds were alleged
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Join FLexlaw to unlock all legal intelligenceBrown filed a Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief alleging ineffective assistance of counsel. The motion allege…
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COBB, Judge.
Brown appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief in which he alleged his counsel provided ineffective assistance.1 Because Brown alleged a prima facie ground for relief,2 i.e., ineffective assistance of counsel,3 the trial court erred by denying the motion without conducting an evidentiary hearing or without attaching relevant portions of the file and record. See Fla.R.Crim.P. 3.850. This cause is therefore remanded for sixty (60) days in order for the trial court to either (1) attach that portion of the file and record that conclusively refutes the two meritorious allegations, or (2) conduct an evidentiary hearing to determine whether Brown’s motion to suppress was meritorious and whether his counsel ever contacted him regarding his defense prior to trial.4 Van Bever v. State, 405 So. 2d 474 (Fla. 5th DCA 1981); Wade v. State, 402 So. 2d 534 (Fla. 5th DCA 1981); Benton v. State, 401 So. 2d 1114 (Fla. 5th DCA 1981); Stephens v. State, 399 So. 2d 1106 (Fla. 5th DCA 1981).
REMANDED.
DAUKSCH, C. J., and COWART, J., concur. . Three motions were actually filed: the original, a supplement thereto, and an “Amended Motion to Vacate Judgment and Sentence,” which incorporated by reference the allegations of the prior two.
. The state in effect agrees that Brown’s motion establishes a prima facie ground for relief: it argues that the cause should be remanded to allow the trial judge to attach the relevant portions of the file and record. If the motion was facially insufficient, the trial judge did not err by simply denying the motion. See Fla.R.Crim.P. 3.850; Van Bever v. State, 405 So. 2d 474 (Fla.1981). We would point out, however, that even where the motion is facially insufficient, the trial court should set forth the specific basis of its ruling. See Committee Note, Fla.R.Crim.P. 3.850; Van Bever, 405 So. 2d at 475.
. The only two allegations which establish a ground for relief are that counsel withdrew a meritorious motion to suppress and that counsel never consulted with Brown concerning his defense until the trial began. If Brown’s motion to suppress would have succeeded, the act of withdrawing it, standing alone, meets the requirements of Knight v. State, 394 So. 2d 997, 1000-1001 (Fla.1981).
.In view of the affidavit by trial counsel (Brown has since obtained different counsel) in which he confesses his sins, though without passing on the issue, we question the continued existence of the privilege to practice law in this state when privately retained counsel voluntarily accepts a case, Knowing full well his inabilities and inexperience in the matter, and then fails to sufficiently research and study the law to enable adequate representation. We leave that determination to the proper grievance authority.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982)…ient, 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. Id. at 474-475 (footnote omitted); see also Brown v. State, 409 So. 2d 129, 130 n. 2 (Fla.5th DCA 1982). If, however, the motion is facially insufficient, the failure to attach portions of the record refuting Jones’ allegations may be excused as harmless error. See, e.g., Cowick v. State, 419 So. 2d 779 (Fla. 1st DCA 1982)…
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McMILLIAN v. State, 411 So. 2d 1372 (Fla. 5th DCA 1982)…d and decided before and no record before us refutes the allegation of ineffective assistance of counsel. Therefore the trial court must hold a hearing to take evidence and decide the issue. Meeks v. State, 382 So. 2d 673 (Fla.1980); Brown v. State, 409 So. 2d 129 (Fla. 5th DCA Jan. 27, 1982); Van Bever v. State, 405 So. 2d 474 (Fla. 5th DCA 1981); Wade v. State, 402 So. 2d 534 (Fla. 5th DCA 1981); Benton v. State, 401 So. 2d 1114 (Fla. 5th DCA 1981); Stephens v. State, 399 So. 2d 1106 (Fla. 5th DCA 1981); Gu…
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Cintron v. State, 495 So. 2d 248 (Fla. 2d DCA 1986)…unsel was ineffective for failing to move to suppress a confession given by Cintron in the absence of any notification of his right to have counsel present. If true, this could constitute ineffective assistance of counsel. See, e.g., Brown v. State, 409 So. 2d 129 (Fla. 5th DCA 1982). Accordingly, we remand this case to the trial court for further consideration of this one issue. The trial court should either conduct a hearing on Cintron’s claim of ineffective counsel, or support its denial of the motion by…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- VAN Bever v. State, 405 So. 2d 474 (Fla. 5th DCA 1981)
- Vino Cato v. State, 401 So. 2d 1114 (Fla. 4th DCA 1981)
- Stephens v. State, 399 So. 2d 1106 (Fla. 5th DCA 1981)
- Cephus Wade v. State, 402 So. 2d 534 (Fla. 5th DCA 1981)