FREDDIE SIMS, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Freddie Sims appeals the summary denial of his post-conviction motion for relief, claiming ineffective assistance of counsel due to inadequate time to prepare for an amended charge and alleging the State used perjured testimony. The appellate court reversed and remanded because material factual disputes existed regarding prejudice and the alleged perjury.
The court reversed the summary denial and remanded because Sims established potential prejudice from the amended charge on which he was convicted, and because he may be entitled to post-conviction relief if perjured testimony was used at trial with the State's knowledge. The trial court erred in summarily denying the motion without adequately addressing the perjury allegations.
[1] A defendant may be entitled to post-conviction relief if the State knowingly used perjured testimony at trial.
[2] A defendant convicted of a charge added by amendment to an information may have been prejudiced by the amendment.
Previewing 2 of 4 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“Since appellant was convicted of the offense charged by the newly added count II, we cannot say that appellant was not prejudiced.”
Establishes that Sims suffered actual prejudice from the amended information because he was convicted on the added count, making summary denial improper.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSims was originally charged by information with entering or remaining in a conveyance with intent to commit theft while armed with a pistol. On the da…
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WIGGINTON, Judge.
Sims appeals the summary denial of his motion for post-conviction relief. In his motion, Sims complains that he was denied effective assistance of counsel and that the State used perjured testimony. As grounds for his allegation of ineffective assistance of counsel, Sims set forth facts showing that he was originally charged by information with entering or remaining in a conveyance with the intent to commit theft while armed with a pistol. According to Sims, on the day of the trial, June 9, 1982, following testimony given by the owner of the automobile and during a recess, the State was permitted to amend the information to add a second count charging possession of a firearm by a convicted felon. Sims does not allege that his attorney failed to move for a continuance, but that he had inadequate time to prepare a defense to the amended information. Further, Sims alleged that he was prejudiced by his attorney’s remaining outside the courtroom longer than the recess, during which the information was amended.
Finally, Sims maintains that one of the State’s witnesses committed perjury by testifying that she had known Sims all of her life, whereas he states that she never saw him outside of the courtroom. He also claimed that the witness was employed by the “clerk of court’s office” and had aided the prosecutor in preparing the amended complaint during the court’s recess.
Sims was acquitted by the jury of the charge of entering or remaining in a conveyance, but was found guilty of possession of a firearm by a convicted felon.
In its order summarily denying Sims’ motion, the trial court attempted to explain the sequence of events leading to the amendment of the information. However, the order is not clear on that point and dismissed the argument regarding the alleged perjury without comment." Since appellant was convicted of the offense charged by the newly added count II, we cannot say that appellant was not prejudiced. Moreover, Sims may be entitled to post-conviction relief if perjured testimony was used at trial with the State’s knowledge. Monson v. State, 443 So. 2d 1061 (Fla. 1st DCA 1984).
Accordingly, the order is REVERSED and the cause is REMANDED for attachment of those portions of the file or record which conclusively show that the defendant is entitled to no relief, or for the court to hold an evidentiary hearing.
SHIVERS and WENTWORTH, JJ„ concur.