PRENTISS SIMPSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Simpson appealed the summary denial of his post-conviction motion for relief based on claims of ineffective assistance of counsel at trial and appellate levels. The court reversed and remanded because the record was insufficient to summarily deny the claims under the Strickland standard.
The court reversed the summary denial and remanded because the record was insufficient to determine whether the Strickland standard for adequate representation was met. The trial court on remand may either summarily deny the motion with supporting record portions or hold an evidentiary hearing before ruling.
[1] Claims of ineffective assistance of counsel are properly raised by a motion for post-conviction relief.
[2] Claims previously raised on direct appeal will not be heard on a motion for post-conviction relief, even when framed as ineffective assistance of counsel.
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Join FLexlaw to unlock all legal intelligence“Claims of ineffective assistance of counsel are properly raised by a motion for post-conviction relief.”
Establishes that ineffective assistance claims are the proper vehicle for raising such constitutional claims in post-conviction proceedings.
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Join FLexlaw to unlock all legal intelligenceSimpson sought post-conviction relief claiming ineffective assistance of counsel for three trial-level failures: the trial court's failure to instruct…
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SHARP, Judge.
This is an appeal from an order summarily denying Simpson’s motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Appellant claims he was denied effective assistance of counsel at both the trial and appellate levels because the trial court failed to instruct on all lesser included offenses, defense counsel failed to object to the state being permitted the first and last (closing) argument when defendant did not testify, and defense counsel failed to request a jury instruction on defendant’s right not to testify. The only issue raised on appeal by appellate counsel was the admission of hearsay evidence over counsel’s objection.
Claims of ineffective assistance of counsel are properly raised by a motion for post-conviction relief. Raulerson v. State, 437 So. 2d 1105 (Fla.1983); Meeks v. State, 382 So. 2d 673 (Fla.1980). However, “[cjlaims previously raised on direct appeal will not be heard on a motion for post-conviction relief simply because those claims are raised under the guise of ineffective assistance of counsel.” Sireci v. State, 469 So. 2d 119, 120 (Fla.1985). However, in this case, none of these failings were raised on appeal and Simpson now claims ineffective assistance of counsel at both the trial and appellate levels.
In our view, the record on appeal is insufficient to summarily deny Simpson’s ineffective assistance of counsel claim. We cannot tell whether the minimum standard requirements for adequate representation were met, as required in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Florida Supreme Court.1 Accordingly, the portion of the order pertaining to these claims is reversed and the cause remanded to the trial court. On remand, the trial court may either summarily deny the motion and attach to its order those portions of the record which conclusively show Simpson is not entitled to relief, or hold an evidentiary hearing and then rule on Simpson’s allegations.2
REVERSED AND REMANDED.
COBB, C.J., and DAUKSCH, J., concur. . Downs v. State, 453 So. 2d 1102 (Fla.1984); State v. Bucherie, 468 So. 2d 229 (Fla.1985).
. Fla.R.Crim.P. 3.850, Rogers v. State, 467 So. 2d 819 (Fla. 5th DCA 1985).
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Morris v. State, 493 So. 2d 19 (Fla. 5th DCA 1986)…). . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bucherie, 468 So. 2d 229 (Fla.1985); Downs v. State, 453 So. 2d 1102 (Fla.1984). . Wright v. State, 491 So. 2d 1100 (Fla. 1st DCA 1986); Simpson v. State, 479 So. 2d 314 (Fla. 5th DCA 1985); Rogers v. State, 467 So. 2d 819 (Fla. 5th DCA 1985); and Fla.R.Crim.P. 3.850.…
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Walker v. State, 678 So. 2d 924 (Fla. 1st DCA 1996)…effective assistance of counsel at his jury trial where counsel failed to request a jury instruction on appellant’s right not to testify. This was a facially sufficient claim that should not have been subject to summary denial. See Simpson v. State, 479 So. 2d 314 (Fla. 5th DCA 1985). [*925] The trial court seems to have concluded that it was a tactical decision of defense counsel whether or not to request the instruction, and the state has alleged that some portion of the trial transcript reflects a consider…
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Whittlesey v. State, 486 So. 2d 705 (Fla. 5th DCA 1986)…earing and then rule on Whitt-lesey’s allegations.2 REVERSED AND REMANDED. COBB, C.J., and ORFINGER, J., concur. . State v. Bucherie, 468 So. 2d 229 (Fla.1985); Downs v. State, 453 So. 2d 1102 (Fla.1984). . Fla.R.Crim.P. 3.850, Simpson v. State, 479 So. 2d 314 (Fla. 5th DCA 1985).…
Previewing 3 of 4 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)
- Meeks v. State, 382 So. 2d 673 (Fla. 1980)
- Downs v. State, 453 So. 2d 1102 (Fla. 1984)
- Sireci v. State, 469 So. 2d 119 (Fla. 1985)
- THE Florida BAR v. Silverman, 468 So. 2d 229 (Fla. 1985)
- Raulerson v. State, 437 So. 2d 1105 (Fla. 1983)
- Rogers v. State, 467 So. 2d 819 (Fla. 5th DCA 1985)