JACK M. ORR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the trial court's summary denial of postconviction relief for ineffective assistance of counsel where the trial court failed to conduct an evidentiary hearing or attach record portions conclusively refuting the appellant's allegations.
A trial court must either conduct an evidentiary hearing on a Rule 3.850 postconviction motion alleging ineffective assistance of counsel or attach record portions that conclusively refute the allegations before summarily denying relief.
[1] A trial court must either conduct an evidentiary hearing on allegations of ineffective assistance of counsel in a Rule 3.850 motion or attach record portions conclusively…
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Join FLexlaw to unlock all legal intelligenceAppellant Orr sought postconviction relief alleging his trial counsel failed to verify an adjudication of his incompetency in North Carolina. The tria…
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PER CURIAM.
Appellant seeks review of the trial court’s order summarily denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Appellant raises several points on appeal, only one of which has merit. Appellant contended he was denied effective assistance of counsel in that his trial counsel had not expended the effort to verify an adjudication of his client’s incompetency in North Carolina. If the allegations are true, appellant might be entitled to post-conviction relief. The trial court, however, failed to conduct an evidentiary hearing or to attach a portion of the record which conclusively refutes appellant’s allegations.
Accordingly, we reverse 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 and attach to its orders^ 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 raised in appellant’s motion. See Fla.Crim.P. 3.850; Hatpin v. State, 428 So. 2d 703 (Fla. 2d DCA 1983); Jones v. State, 421 So. 2d 55 (Fla. 2d DCA 1982). To obtain further review in this cause, either aggrieved party must appeal the new ruling of the trial court.
OTT, A.C.J., and CAMPBELL and HALL, JJ., concur.
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Citator
Cited By
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Carter v. State, 590 So. 2d 1096 (Fla. 3d DCA 1991)…fective assistance of counsel due to an attorney’s failure to raise an insanity defense, an evidentiary hearing is required. See Boutwell v. State, 563 So. 2d 798 (Fla. 1st DCA 1990); Myers v. State, 539 So. 2d 525 (Fla. 1st DCA 1989); Orr v. State, 467 So. 2d 1117 (Fla. 2d DCA 1985). In response to Carter’s motion, the State argues that an evidentiary hearing was not necessary because the doctors’ reports, indicating that Carter was legally sane when he committed the offenses, conclusively rebutted Carter’s c…
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ORR v. State, 478 So. 2d 525 (Fla. 2d DCA 1985)…had not established entitlement to relief. The trial court entered an order denying the motion without a hearing, and defendant appealed pursuant to Florida Rule of Appellate Procedure 9.140(g). We remanded the case to the trial court. Orr v. State, 467 So. 2d 1117 (Fla. 2d DCA 1985). Specifically, we directed the trial court either to hold a hearing or to attach to his order sufficient portions of the record to support the summary denial of defendant’s motion. Our directive should be construed as being lim [*…
Authorities Cited
- Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982)
- Halpin v. State, 428 So. 2d 703 (Fla. 2d DCA 1983)