DONALD E. HALPIN, A/K/A CHARLES W. ENGLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed in part the trial court's summary denial of postconviction relief, holding that the trial court must either conduct an evidentiary hearing or attach record portions refuting the ineffective assistance of counsel claim regarding failure to subpoena a witness.
A trial court must either conduct an evidentiary hearing or attach record portions conclusively refuting an ineffective assistance of counsel claim before summarily denying a Rule 3.850 motion.
[1] A trial court denying a Rule 3.850 postconviction relief motion must either conduct an evidentiary hearing or attach record portions conclusively establishing that the mo…
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Join FLexlaw to unlock all legal intelligenceHalpin appealed the summary denial of his postconviction relief motion under Florida Rule of Criminal Procedure 3.850, raising four points including a…
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PER CURIAM.
Donald E. Halpin appeals the summary denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Appellant raised four points in the motion. The allegation in point one, that appellant was denied effective assistance of counsel because his trial counsel failed to comply with appellant’s request that he subpoena Thomas Y. Knopp to testify, if true, might entitle appellant to relief. The trial court, however, failed to conduct an evidentiary hearing or attach portions of the record which refute this allegation.
The trial court-was correct in denying appellant’s motion as to the other points raised therein.
Accordingly, we reverse in part the trial court’s denial of appellant’s motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion as to the allegation in point one and attach to its order those portions of the record which conclusively show that appellant is not entitled to relief or hold an evidentiary hearing and then rule on the ground alleged in point one of the motion. See Fla.R.Crim.P. 3.850. See also Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982), and Van Bever v. State, 405 So. 2d 474 (Fla. 5th DCA 1981). To obtain further review any aggrieved party must appeal the new ruling of the trial court.
AFFIRMED in part, REVERSED in part, and REMANDED.
OTT, Acting C.J., and BOARDMAN and CAMPBELL, JJ., concur.
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Citator
Cited By (27 total)
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Offord v. State, 427 So. 2d 1080 (Fla. 2d DCA 1983)…its order those portions of the record which conclusively show that appellant is not entitled to relief, or hold an evidentiary hearing and then rule on the allegation raised in appellant’s motion. See Fla.R.Crim.P. 3.850. See also Halpin v. State, 428 So. 2d 703 No. 83-35 (Fla. 2d DCA, Feb. 16, 1983); Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982); and Van Bever v. State, 405 So. 2d 474 (Fla. 5th DCA 1981). To obtain further review in this cause, either aggrieved party must appeal the new ruling of the t…
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Robinson v. State, 516 So. 2d 20 (Fla. 1st DCA 1987)…o hint in the motion as to any facts such as the identity of such witnesses, what they would testify to if called, or their availability. While the failure to call witnesses may constitute ineffective assistance of counsel, see e.g. Halpin v. State, 428 So. 2d 703 (Fla. 2nd DCA 1983), a 3.850 movant must allege more than the bare bones statement that his lawyer failed to call two witnesses. AFFIRMED. MILLS and ERVIN, JJ., concur.…
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Ginwright v. State, 466 So. 2d 409 (Fla. 2d DCA 1985)…ummarily deny the motion and attach to its order those portions of the record which show conclusively that appellant is not entitled to relief, or hold an evidentiary hearing and then rule on the allegations presented in the motion. Hatpin v. State, 428 So. 2d 703 (Fla. 2d DCA 1983). We affirm the trial court’s summary denial of the other allegations in appellant’s motion. We reverse the order with respect to the allegation discussed above, and remand for proceedings consistent with this opinion. AFFIRMED I…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982)
- VAN Bever v. State, 405 So. 2d 474 (Fla. 5th DCA 1981)