EDDIE DIGGS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Eddie Diggs appealed the summary denial of his post-conviction motion for relief based on ineffective assistance of counsel. The court reversed and remanded, finding that the trial court failed to conduct a required evidentiary hearing and did not attach record portions demonstrating the appellant was not entitled to relief.
The court reversed the denial and remanded with instructions that the trial court must either summarily deny the motion while attaching record portions that conclusively refute the allegation, or conduct an evidentiary hearing to determine whether Diggs is entitled to relief.
[1] A claim of ineffective assistance of counsel based on an attorney's stipulation to a motion in limine may entitle a defendant to post-conviction relief.
[2] A trial court must attach portions of the record that conclusively refute a defendant's allegations when summarily denying a motion for post-conviction relief.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Such claim, if true, might entitle appellant to relief.”
Establishes that the allegation of ineffective assistance of counsel based on the attorney's stipulation regarding the police officer's credibility was cognizable and potentially meritorious.
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Join FLexlaw to unlock all legal intelligenceIn 1983, Diggs filed a Rule 3.850 post-conviction motion alleging ineffective assistance of counsel because his trial attorney stipulated to the state…
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OTT, Acting Chief Judge.
Appellant appeals the summary denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons stated below, we reverse and remand to the trial court with instructions.
In 1983, appellant filed a rule 3.850 motion with the trial court, which was summarily denied. Appellant timely appealed to this court, which found:
In his Rule 3.850 motion, appellant alleged, inter alia, that he was denied effective assistance of counsel as a result of his attorney’s decision at the outset of trial to stipulate to the state’s oral motion in limine to not inquire of [a Tampa police officer’s] credibility. Such claim, if true, might entitle appellant to relief.
Diggs v. State, 440 So. 2d 656 (Fla. 2d DCA 1983). Accordingly, we reversed the summary denial of appellant’s motion and remanded to the trial court with the usual instructions.
On remand, the trial court again denied appellant’s motion.1 In its order, which stated that the motion was “heard” on March 7, 1984, the trial court entered findings in support of denial of the motion. Appellant filed a delayed appeal which this court granted pursuant to Baggett v. Wainwright, 229 So. 2d 239 (Fla.1970). We have reviewed the record and find no indication that an evidentiary hearing was ever held on appellant’s motion. Further, the trial court’s order denying appellant’s motion failed to include portions of the record which demonstrate that appellant is not entitled to relief. Accordingly, we again reverse the order denying appellant’s motion and remand to the trial court with instructions to either summarily deny the motion and, if so, attach portions of the record below which conclusively demonstrate that appellant is not entitled to relief, or, if the record does not definitely refute the allegation, conduct an evidentiary hearing in order to determine whether he is entitled to relief. In order to obtain any further review of any subsequent ruling of the court below, the aggrieved party must appeal anew.
REVERSED and REMANDED.
SCHOONOVER and HALL, JJ., concur. . On remand, appellant’s case was not assigned to the original trial judge.
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Citator
Authorities Cited
- Baggett v. Louie L. Wainwright, 229 So. 2d 239 (Fla. 1969)
- Diggs v. State, 440 So. 2d 656 (Fla. 2d DCA 1983)