ROBERT W. SLOAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Sloan appeals the summary denial of his motion for postconviction relief alleging ineffective assistance of counsel. The court found one ground potentially meritorious—counsel's failure to move for severance of the firearm possession charge from other felony charges, which would have prevented prejudicial evidence of a prior conviction from influencing the jury on unrelated counts.
The court held that counsel's failure to move for severance may have constituted ineffective assistance because severance would have been granted and would have prevented the prejudicial effect of introducing prior conviction evidence on the other charges. However, even if the allegation were sustained, the conviction for possession of a firearm by a convicted felon would remain unaffected since the prior conviction evidence was properly introduced for that charge.
[1] A defendant is entitled to severance of the charge of possession of a firearm by a convicted felon from other charges when proving the prior felony conviction would preju…
[2] A trial court must hold an evidentiary hearing on a motion for postconviction relief if the record does not conclusively show that the movant is not entitled to relief.
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“Had such a motion been made, appellant would have been entitled to the severance so as to obviate the prejudice incident to proving the previous felony conviction with respect to the other charges.”
Establishes that severance was a matter of right and would have prevented the prejudicial effect of prior conviction evidence on unrelated counts
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSloan was charged with grand theft, use of a firearm during commission of a felony, and possession of a firearm by a convicted felon. All three charge…
The full statement of facts, procedural history, and disposition for this case are member content.
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GRIMES, Acting Chief Judge.
This is an appeal from the summary denial of appellant’s motion for postconviction relief.
Appellant was charged with grand theft, use of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. All three charges were tried together, and the jury convicted appellant as charged. In order to prove pos session of a firearm by a convicted felon, the state introduced evidence of a previous felony conviction.
Appellant raised numerous grounds in his motion for postconviction relief but only one may have merit. Appellant alleged that trial counsel was ineffective for failing to move for a separate trial on the charge of possession of a firearm by a convicted felon. Had such a motion been made, appellant would have been entitled to the severance so as to obviate the prejudice incident to proving the previous felony conviction with respect to the other charges. See State v. Vazquez, 419 So. 2d 1088 (Fla.1982); Craft v. State, 441 So. 2d 704 (Fla. 2d DCA 1983).
In its written response filed with the trial court, the state asserted that it was a reasonable tactical decision on the part of appellant’s counsel to permit the charges to be tried together. This may well be so, but there is nothing in the record before us which shows conclusively that this is so.
Accordingly, we reverse in part the denial of appellant's motion. On remand, the court may either again summarily deny the motion as to the allegation specified above and attach to its order 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 allegation. Of course, even if the allegation were sustained, the conviction for possession of a firearm by a convicted felon would not be affected because evidence of the prior felony conviction was properly introduced in that case. In the event the trial court again denies the motion, appellant must file a notice of appeal within thirty days to obtain further appellate review.
Affirmed in part, reversed in part, and remanded with directions.
SCHOONOVER and HALL, JJ., concur.
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Cited By
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Sloan v. State, 500 So. 2d 727 (Fla. 2d DCA 1987)…SCHEB, Judge. Robert Sloan appeals the summary denial of his motion for postconviction relief [*728] filed under rule 3.850, Florida Rules of Criminal Procedure. In Sloan v. State, 492 So. 2d 799 (Fla. 2d DCA 1986), we remanded this case with directions either to grant Sloan a hearing on his allegation of ineffective assistance of counsel, or to attach sufficient portions of the record to refute the claims made in the motion. The trial cou…
Authorities Cited
- State v. Vazquez, 419 So. 2d 1088 (Fla. 1982)
- Craft v. State, 441 So. 2d 704 (Fla. 2d DCA 1983)