LAWRENCE EVERETT WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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This appeal concerns the summary denial of a post-conviction motion under Florida Rule of Criminal Procedure 3.850. The court held that while a violation of the speedy trial rule cannot be raised for the first time in post-conviction proceedings, an ineffective assistance of counsel claim based on counsel's failure to raise the speedy trial issue requires an evidentiary hearing.
A violation of the speedy trial rule cannot be raised for the first time in post-conviction proceedings because it is not a fundamental error and could have been raised on direct appeal. However, an ineffective assistance of counsel claim based on counsel's failure to move for discharge upon expiration of the 180-day period meets the Strickland v. Washington test and requires either an evidentiary hearing or a summary denial with attached record portions conclusively showing the defendant is not entitled to relief.
[1] A violation of the speedy trial rule, not being fundamental error and having been available for direct appeal if raised in the trial court, cannot be raised in a motion f…
[2] Ineffective assistance of counsel claims based on counsel's failure to raise a speedy trial violation are cognizable under Florida Rule of Criminal Procedure 3.850 when t…
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Join FLexlaw to unlock all legal intelligence“Appellant's factual allegations facially show that he was not brought to trial within one hundred eighty days. Therefore, appellant's allegation of ineffective assistance of counsel meets the test recently established by the United States Supreme Court in Strickland v. Washington...; he has shown that counsel's performance was deficient and that this deficient performance prejudiced appellant so as to deprive him of a fair trial.”
Establishes that the ineffective assistance claim meets the Strickland test and is properly raised in post-conviction proceedings.
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Join FLexlaw to unlock all legal intelligenceAppellant Williams was arrested but not tried within 180 days, in violation of Florida Rule of Criminal Procedure 3.191. He filed a post-conviction mo…
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OTT, Acting Chief Judge.
This appeal is from the summary denial of a motion seeking postconviction relief under Florida Rule of Criminal Procedure 3.850. Appellant raised several points in his motion which merit discussion. He first alleges that he was not tried within one hundred eighty days of his arrest, in violation of Florida Rule of Criminal Procedure 3.191. He also alleges he was denied effective assistance of counsel because his trial counsel did not raise this issue in the trial court. Appellant admits that the speedy trial issue was not raised on direct appeal.
Violation of rule 3.191 is a violation of a state procedural rule and does not go to the fundamental fairness of a trial. See Davis v. Wainwright, 547 F. 2d 261 (5th Cir.1977). Violation of the speedy trial rule can be raised on direct appeal but only if it was first raised in the trial court. Oliva v. State, 354 So. 2d 1264 (Fla. 3d DCA 1978). Because this error is not fundamental, and because it could have been raised on direct appeal, it is not proper to raise it under rule 3.850.
Appellant also alleges his trial counsel was ineffective because of the failure to move for discharge upon the expiration of the one-hundred-eighty-day period following his arrest. See Fla.R.Crim.P. 3.191(d)(1). Appellant’s factual allegations facially show that he was not brought to trial within one hundred eighty days. Therefore, appellant’s allegation of ineffective assistance of counsel meets the test recently established by the United States Supreme Court in Strickland v. Washington,-U.S.-, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); he has shown that counsel’s performance was deficient and that this deficient performance prejudiced appellant so as to deprive him of a fair trial.
The trial court did not conduct an evidentiary hearing. The order denying the motion recites that denial is “based upon the record and the affidavit filed by ... defendant’s attorney.” However, no portions of the record, nor counsel’s affidavit, are attached.
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 ineffective assistance of counsel allegation and attach to its order those portions of the record which conclusively show appellant is not entitled to relief,- or hold an evidentiary hearing and then rule on the specified allegation. See Fla.R.Cr.P. 3.850. See also Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982). To obtain further review, any aggrieved party must appeal the new ruling of the trial court.
The other points raised in appellant’s motion were correctly denied by the trial court.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
CAMPBELL and SCHOONOVER, JJ., concur.
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Dexter v. State, 837 So. 2d 595 (Fla. 2d DCA 2003)…ion of the speedy trial period. See Fla. R.Crim. P. 3.191(a). We affirm on this point because Dexter has not alleged prejudice, and therefore his claim is facially insufficient. We acknowledge that under this court’s decision in Williams v. State, 452 So. 2d 657 (Fla. 2d DCA 1984), Dexter’s claim would have been facially sufficient. However, when Williams was decided in 1984 a defendant who was not brought to trial before expiration of the speedy trial period was entitled to discharge. Several months after…
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Clark v. State, 662 So. 2d 729 (Fla. 2d DCA 1995)…ate, 661 So. 2d 73 (Fla. 2d DCA 1995). If we ignore, as we must, the state’s assertion in its response that Clark failed to copy the state with its IAD request, his allegation of ineffective assistance is facially sufficient. See Williams v. State, 452 So. 2d 657 (Fla. 2d DCA 1984) (allegation that trial counsel failed to move to discharge after the time for speedy trial had expired was facially sufficient). Accordingly, we reverse with directions to hold an evidentiary hearing on Clark’s motion, or to agai…
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Marsh v. State, 581 So. 2d 653 (Fla. 4th DCA 1991)…an unsworn memorandum of law supporting his motion, that his trial counsel was ineffective in failing to move for discharge for lack of speedy trial. We find that appellant’s allegations in this regard are facially sufficient, see Williams v. State, 452 So. 2d 657 (Fla. 2d DCA 1984), but that the allegations could properly have been disregarded by the trial court because they were not contained in a properly sworn motion. See Daniels v. State, 450 So. 2d 601 (Fla. 4th DCA 1984). Accordingly, our affirmance of…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982)
- Gerrold Duane Davis v. Louie L. Wainwright, 547 F.2d 261 (5th Cir. 1977)
- Oliva v. State, 354 So. 2d 1264 (Fla. 3d DCA 1978)