TERRY D. HARRELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harrell appeals a summary denial of his Rule 3.850 motion alleging ineffective assistance of counsel. The court holds that a defendant is entitled to be present at an evidentiary hearing on a post-conviction ineffective assistance claim where factual disputes exist, and remands for a proper hearing.
A defendant must be afforded an opportunity to be present, testify, and cross-examine witnesses at a hearing on a Rule 3.850 motion where questions of fact within the defendant's own knowledge must be resolved, even though Rule 3.850 does not require the defendant's presence in all post-conviction relief proceedings.
[1] A defendant is entitled to be present at a hearing on a motion for post-conviction relief when factual issues within the defendant's knowledge must be resolved.
[2] A defendant must be afforded an opportunity to testify and cross-examine witnesses at a post-conviction relief hearing when factual issues within the defendant's knowledg…
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Join FLexlaw to unlock all legal intelligence“Rule 3.850 does not require that a defendant must always be present on a motion for post-conviction relief. Nevertheless, where, as here, there are questions of fact within the defendant's own knowledge which must be resolved, the defendant must be afforded an opportunity to testify and cross-examine witnesses.”
Establishes the core holding that defendants have a right to be present and testify at post-conviction hearings where factual questions within their knowledge must be resolved.
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Join FLexlaw to unlock all legal intelligenceHarrell filed a post-conviction relief motion alleging his trial counsel failed to contact potential alibi witnesses and inadequately investigated the…
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SCHEB, Acting Chief Judge.
Defendant Terry D. Harrell filed a motion for post-conviction relief, alleging inef fective assistance of counsel under Florida Rule of Criminal Procedure 3.850. Defendant’s allegations focused on his counsel’s failure to contact potential alibi witnesses and to investigate the circumstances of the attempted burglary for which his probation was revoked. The trial court denied his motion on September 23, 1983.
On appeal this court reversed and remanded the case, holding that defendant’s motion stated grounds alleging ineffectiveness of counsel concerning the failure to investigate two potential alibi witnesses. This court directed that the trial court either 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 that defendant was not present at this hearing. Moreover, the file fails to reveal whether defendant was afforded an opportunity to be present or whether he waived such opportunity. Rather, this hearing merely consisted of a statement from defendant’s former attorney, whom the defendant alleges was incompetent. From that attorney’s statement the trial court determined that there was no merit to defendant's allegations.
Defendant appeals once again. This time he contends that he was entitled to be present at the hearing on his motion since there were important questions of fact to be resolved. We agree with defendant that under the circumstances he was entitled to be present.
Rule 3.850 does not require that a defendant must always be present on a motion for post-conviction relief. Nevertheless, where, as here, there are questions of fact within the defendant’s own knowledge which must be resolved, the defendant must be afforded an opportunity to testify and cross-examine witnesses. Alfonso v. State, 319 So. 2d 49 (Fla. 2d DCA 1975).
Here, based on the statement from defendant’s former trial counsel, counsel apparently dis'cussed with the defendant the advisability of obtaining the alibi witnesses, and defendant agreed such witnesses should not be called. Trial counsel also said her further investigation of the attempted burglary revealed evidence of footprints supporting the state’s case. Although these facts may be true, we have previously held that defendant’s rule 3.850 allegations, if true, stated grounds for relief. Consequently, defendant was entitled to a judicial determination based on his testimony and his opportunity to cross-examine his former counsel.
We reverse the trial judge’s order and remand for an evidentiary hearing. Defendant must be afforded an opportunity to be present at this hearing to testify and cross-examine his former counsel concerning his allegations that trial counsel was ineffective.
CAMPBELL, J., and MALONEY, DENNIS P., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Deatrick S. Bolden v. State, 875 So. 2d 780 (Fla. 2d DCA 2004)…led to be present as a matter of right; however, when “there are questions of fact within the defendant’s own knowledge which must be resolved, the defendant must be afforded the opportunity to testify and cross-examine witnesses.” Harrell v. State, 458 So. 2d 901, 902 (Fla. 2d DCA 1984) (citing Alfonso v. State, 319 So. 2d 49, 50 (Fla. 2d DCA 1975)). Accordingly, on remand, if the trial court can resolve Bolden’s motion under the proper standard without considering facts that are within Bolden’s knowledge, t…
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Cintron v. State, 508 So. 2d 1315 (Fla. 2d DCA 1987)…e affidavit serves as the functional equivalent of testimony which is contradictory to the allegations sworn as true by Cintron’s motion. As such, it ought to have been subject to confrontation by Cintron at an evidentiary hearing. Harrell v. State, 458 So. 2d 901 (Fla. 2d DCA 1984); Alfonso v. State, 319 So. 2d 49 (Fla. 2d DCA 1975). We stress that by no means are we impugning Montesino’s credibility. It may well be that in this case the result of any evidentiary hearing is a foregone conclusion and the hea…
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Mims v. State, 672 So. 2d 662 (Fla. 1st DCA 1996)…d given Miranda warnings in Sparnsh to Híspame defendant was inadequate basis for summarily denying Rule 3.850 motion alleging counsel’s ineffectiveness for failure to move to suppress tainted confession); Havis, 555 So. 2d at 418; Harrell v. State, 458 So. 2d 901, 902 (Fla. 2d DCA 1984). An affidavit of counsel that was unavailable to the trial court when the Rule 3.850 motion was filed is not part of the “files or record” on wMch the court may solely rely to refute conclusively the appellant’s allegations…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Alfonso v. State, 319 So. 2d 49 (Fla. 2d DCA 1975)
- Harrell v. State, 443 So. 2d 1080 (Fla. 2d DCA 1984)
- W.T. Creel v. Affordable Homes OF Pensacola, Inc., 443 So. 2d 1080 (Fla. 1st DCA 1984)