ROBERT ROMANO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Robert Romano appealed the summary denial of his Rule 3.850 motion for post-conviction relief, raising claims of ineffective assistance of counsel at trial and on appeal, prosecutorial misconduct, and illegal sentencing. The court reversed in part and remanded, finding the trial court erred by denying the motion without an evidentiary hearing or attaching relevant record portions, while dismissing the appellate counsel claim as improperly raised under Rule 3.850.
The trial court erred in denying the motion for post-conviction relief without either conducting an evidentiary hearing or attaching relevant portions of the record to demonstrate the claims were without merit. The claim of ineffective assistance of appellate counsel was improperly raised in Rule 3.850 proceedings and must be raised by habeas corpus petition instead. The case was reversed and remanded in part for further proceedings on the trial counsel and prosecutorial misconduct claims.
[1] A claim of prosecutorial misconduct, if not preserved by objection, may be raised in a motion for postconviction relief as a claim of ineffective assistance of counsel.
[2] A trial court cannot summarily deny a claim of ineffective assistance of counsel based on prosecutorial misconduct without attaching record evidence demonstrating that th…
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“the trial court erred in denying the motion without either conducting an evidentiary hearing on the claims or attaching to its order denying the motion the relevant portions of the record to show that the claims were without merit”
Establishes the procedural error requiring reversal—trial courts must provide either a hearing or record documentation when denying Rule 3.850 motions
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRomano was convicted and sentenced on charges including felony murder and robbery. At trial, the prosecutor made comments that Romano argues were infl…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Improper Prosecutorial Comment cases and more on FLexlaw
PER CURIAM.
Appellant makes several arguments in his appeal from summary denial of his motion for post-conviction relief under Rule 3.850, Florida Rules of Criminal Procedure; ineffective assistance of counsel, both at trial and on direct appeal, fundamental error based on improper prosecutorial comments, and that his sentence was illegal. More specifically, appellant argues that the trial court erroneously allowed the prosecutor to inflame the jurors and to state his personal belief of appellant’s guilt and sanity at the time of the offense charged, that his trial counsel was ineffective for failing to object to these comments, and that the trial court erroneously sentenced him on both greater and lesser included offenses of felony murder and robbery. Also, he argues that his appellate counsel was ineffective in failing to raise the issue of his voluntary intoxication on direct appeal.
As to the first three arguments, the trial court erred in denying the motion without either conducting an evidentiary hearing on the claims or attaching to its order denying the motion the relevant portions of the record to show that the claims were without merit. Flint v. State, 11 F.L.W. 1131 (Fla. 4th DCA May 14,1986).
As for appellant’s claim of ineffective assistance of appellate counsel, we note that such claims are inappropriate to raise in proceedings pursuant to Rule 3.850, Florida Rules of Criminal Procedure. Smith v. State, 400 So. 2d 956 (Fla.1981). Instead, they are properly raised by petition for writ of habeas corpus. In appropriate cases, this court may consider an appellant’s claim as having been so filed. However, appellant herein has failed to attach any portions of the record in support of his arguments of ineffectiveness. Thus, we are unable to make any determination on his claim at this time. We therefore dismiss this portion of his appeal without prejudice to appellant’s right to raise the issue anew in appropriate pleadings, accompanied by an appendix in support.
REVERSED and REMANDED in part for further appropriate proceedings; DISMISSED in part.
LETTS, GLICKSTEIN and GUNTHER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Smith v. State, 543 So. 2d 316 (Fla. 5th DCA 1989)…assistance of appellate counsel should not be raised in a Rule 3.850 proceeding, but rather should be raised in a habeas corpus proceeding before the court which considered the appeal. See Smith v. State, 400 So. 2d 956 (Fla.1981); Romano v. State, 491 So. 2d 1188 (Fla. 4th DCA 1986); Bailey v. State, 475 So. 2d 296 (Fla. 2d DCA 1985). Since the defendant specifically conceded that the errors raised were properly preserved for appellate review by trial counsel, there is no claim of ineffective assistance of t…
Authorities Cited
- Smith v. State, 400 So. 2d 956 (Fla. 1981)