TERRY D. HARRELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred by summarily denying the defendant's motion for post-conviction relief without an evidentiary hearing or attaching record portions refuting the allegations.
The defendant alleged that his trial counsel failed to contact two potential alibi witnesses and investigate the circumstances of the burglary. The tr…
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PER CURIAM.
Defendant appeals from the summary denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand.
In his motion, defendant claimed he provided trial counsel with the names and addresses of two potential alibi witnesses. Defense counsel allegedly failed to contact these witnesses, and failed to investigate the circumstances of the burglary. If defendant’s allegations are true, the trial counsel’s failure to investigate two potential alibi witnesses might constitute a substantial omission by defense counsel, and appellant might therefore be entitled to relief. Knight v. State, 394 So. 2d 997 (Fla. 1981). The trial court, however, failed to conduct an evidentiary hearing or attach portions of the record which refute the allegations.
Accordingly, the trial court’s denial of defendant’s motion is reversed and the case is remanded to the trial court. On remand, the trial court may either again summarily deny the motion 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 allegations presented in the motion. Halpin v. State, 428 So. 2d 703 (Fla. 2d DCA 1983).
OTT, C.J., and DANAHY and CAMPBELL, JJ., concur.
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Alwin J. Jacobs v. State, 880 So. 2d 548 (Fla. 2004)…to relief on each ground”); Mallory v. State, 577 So. 2d 987, 988 (Fla. 4th DCA 1991) (remanding the case because the defendant’s motion stated a facially sufficient IAC claim regarding the failure to investigate alibi witnesses); Harrell v. State, 443 So. 2d 1080, 1080 (Fla. 2d DCA 1984) (remanding the case on the IAC claim that defense counsel failed to contact potential alibi witnesses after the defendant provided their names and addresses because the trial court summarily denied the claim and failed to at…
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Harrell v. State, 458 So. 2d 901 (Fla. 2d DCA 1984)…er summarily deny defendant’s motion, attaching, to its order those portions of the record which conclusively showed he was not entitled to relief, or hold an evidentiary hearing and rule on the allegations presented in his motion. Harrell v. State, 443 So. 2d 1080 (Fla. 2d DCA 1984). Pursuant to this court’s mandate, the trial court reviewed the matter and summarily denied the motion. This time the trial judge attached to his order a transcript of the September 23 hearing. From that transcript it appears tha…
Authorities Cited
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- Halpin v. State, 428 So. 2d 703 (Fla. 2d DCA 1983)