MARK ALLEN BIR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mark Allen Bir appealed the trial court's summary denial of his second Rule 3.850 motion for post-conviction relief, claiming ineffective assistance of counsel and coercion into pleading nolo contendere. The appellate court affirmed the summary denial, holding that successive ineffective assistance claims may be summarily denied and that the plea colloquy refuted any coercion allegations.
The trial court properly summarily denied the successive post-conviction motion raising additional grounds for ineffective assistance of counsel where an initial motion had already raised ineffective assistance claims. The allegation of coercion was refuted by the plea colloquy in which Bir confirmed under oath that no one had forced, threatened, or coerced him into pleading nolo contendere and that he was satisfied with his counsel.
[1] A trial court may summarily deny a successive motion for post-conviction relief that raises additional grounds for ineffective assistance of counsel, even if an initial m…
[2] A defendant's sworn answers during a plea colloquy, in which the defendant denies being coerced into pleading, are sufficient to refute allegations of coercion in a subse…
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Join FLexlaw to unlock all legal intelligence“Where an initial motion for postconviction relief raises the claim of ineffective assistance of counsel, the trial court may summarily deny a successive motion which raises additional grounds for ineffective assistance of counsel.”
Establishes the legal standard allowing summary denial of successive ineffective assistance claims.
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Join FLexlaw to unlock all legal intelligenceBir's trial counsel, Mr. Treacy, had previously served as an assistant state attorney and had appeared on behalf of the state at Bir's first appearanc…
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NIMMONS, Judge.
The defendant appeals from an order denying, without hearing, his motion for post-conviction relief filed pursuant to Fla.R. Cr.P. 3.850. We affirm.
Defendant’s motion contends that he was denied effective assistance of counsel by reason of the fact that his appointed trial counsel (Mr. Treacy), who had previously served as an assistant state attorney, had, prior to his joining the public defender’s staff, appeared on behalf of the state at the defendant’s first appearance and arraignment in the instant case. The motion further alleges that, after the appointment of the public defender, Mr. Treacy moved to withdraw as counsel for the defendant which motion was denied by the trial court. The case proceeded to trial. Prior to the trial’s conclusion, the defendant entered a plea of nolo contendere and was adjudicated and sentenced.1 In addition to the claim of ineffective assistance of counsel, the motion also claims that the defendant’s attorney, Mr. Treacy, coerced him into pleading nolo contendere.
In an earlier 3.850 motion filed in May 1985, the defendant claimed entitlement to relief based, in part, upon ineffective assistance of counsel. Such motion was denied without hearing and the defendant filed in this Court an appeal therefrom. This Court recently dismissed such appeal inasmuch as the defendant failed to timely file a notice of appeal. Bir v. State, BK-129 (Fla. 1st DCA July 30, 1986). Although our examination of the motion involved in BK-129 shows that the factual basis alleged in that motion for ineffective assistance of counsel is different from the basis for the ineffective assistance alleged in the second (instant) motion, the trial court was justified in summarily denying the second motion.
“Where an initial motion for postconviction relief raises the claim of ineffective assistance of counsel, the trial court may summarily deny a successive motion which raises additional grounds for ineffective assistance of counsel.”
Christopher v. State, 489 So. 2d 22 (Fla.1986). See also Dobbert v. State, 456 So. 2d 424 (Fla.1984) and Slattery v. State, 433 So. 2d 615 (Fla. 3d DCA 1983).
With respect to the instant motion’s allegation that the defendant was coerced into pleading guilty, such is refuted by the transcript of the plea dialogue2 The following are pertinent excerpts from the plea dialogue:
“Q. [Court] Has anyone forced, you or threatened you in any manner or made any promises to you other than stated in open court today, or tonight, in the plea agreement that is set forth on record in order to coerce you to plead nolo conten-dere?”
A. [Defendant] No. * * * * * *
Q. [Court] Are you satisfied with your counsel, Mr. Treacy and Mr. Coyle?
A. [Defendant] Yes sir. The purpose for requiring the kind of plea dialogue contemplated by Fla.R.Cr.P. 3.172 is to assure that the guilty or nolo conten-dere plea is entered voluntarily and not through coercion. The defendant’s answers to the above questions are sufficient to refute the defendant’s allegations of coercion. Hagans v. State, 492 So. 2d 753 (Fla. 1st DCA 1986); Thomas v. State, 419 So. 2d 1141 (Fla. 1st DCA 1982).
AFFIRMED.
MILLS and WIGGINTON, JJ., concur. . His direct appeal to this Court resulted in an affirmance in Bir v. State, 405 So. 2d 1073 (Fla. 1st DCA 1981).
. Such dialogue was attached to the defendant’s first 3.850 motion which we have examined from this Court’s records in Case No. BK-129 (referred to above).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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BIR v. State, 515 So. 2d 397 (Fla. 1st DCA 1987)…lated appeal. The petition was granted and the instant appeal was allowed to proceed under docket number BQ-298. The original appeal in BK-129 was alluded to in another appeal involving another 3.850 motion filed by this appellant. See Bir v. State, 493 So. 2d 55 (Fla. 1st DCA 1986). . Rule 3.172(c) provides, in pertinent part: (c) * * * [x]he trial judge should, when determining voluntariness, place the defendant under oath and shall address the defendant personally and shall determine that he understands…
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Autera v. State, 550 So. 2d 1158 (Fla. 3d DCA 1989)…PER CURIAM. Affirmed. Bir v. State, 493 So. 2d 55 (Fla. 1st DCA 1986); Fla.R.Crim.P. 3.172.…
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Burkes v. State, 673 So. 2d 575 (Fla. 3d DCA 1996)…al court to have been correct in indicating that the sentences should be modified, and in the denial of the balance of the 3.850 motion. See State v. A J. Fox, 659 So. 2d 1324 (Fla. 3d DCA 1995), rev. denied 668 So. 2d 602 (Fla. 1996); Bir v. State, 493 So. 2d 55 (1986); Fla.R.Crim.Pro. 3.172(i). Therefore we return the matter to the trial court to enter the appropriate sentencing orders reflecting the changed sentences as to counts 6 through 10 in accordance with its order of March 13,1995. Affirmed wit…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tortoise Island Cmtys., Inc. v. The Moorings Ass'n, Inc., 489 So. 2d 22 (Fla. 1986)
- Dobbert v. State, 456 So. 2d 424 (Fla. 1984)
- Thomas v. State, 419 So. 2d 1141 (Fla. 1st DCA 1982)
- Hagans v. State, 492 So. 2d 753 (Fla. 1st DCA 1986)
- Gray v. State, 433 So. 2d 615 (Fla. 3d DCA 1983)
- BIR v. State, 405 So. 2d 1073 (Fla. 1st DCA 1981)
- Deal v. State, 405 So. 2d 1073 (Fla. 1st DCA 1981)