THOMAS M. OVERTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Overton appeals the trial court's summary denial of his motion for post-conviction relief alleging ineffective assistance of trial counsel. The appellate court reverses, finding that a defendant cannot waive his right to an evidentiary hearing on a post-conviction relief motion and remands for proper consideration of whether such a hearing is required.
A defendant cannot waive his right to an evidentiary hearing on a motion for post-conviction relief. The trial court must consider the State's response to properly determine whether an evidentiary hearing is required and proceed according to applicable criminal procedure rules.
[1] A prisoner seeking post-conviction relief cannot waive the right to an evidentiary hearing.
[2] A trial court must consider the State's response to a motion for post-conviction relief when determining whether an evidentiary hearing is required.
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Join FLexlaw to unlock all legal intelligence“Since we find no authority to indicate that an evidentiary hearing on a motion for post-conviction relief may be waived by a prisoner seeking relief, we reverse the order of denial.”
Establishes the core holding that prisoners cannot waive the right to an evidentiary hearing on post-conviction relief motions.
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Join FLexlaw to unlock all legal intelligenceOverton filed a motion for post-conviction relief on May 28, 1985, alleging ineffective assistance of trial counsel. The trial court issued an order t…
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SHIVERS, Judge.
Appellant Overton appeals the trial court’s summary denial of his motion for post-conviction relief. We reverse the order of denial and remand.
Appellant filed the instant motion for post-conviction relief, alleging ineffective assistance of trial counsel, on May 28, 1985. An order to show cause why the motion should not be granted was issued to the State Attorney and a subsequently granted motion for extension of time gave the State until August 14, 1985, to respond to appellant’s motion. When the State had not responded by August 26, 1985, appellant filed a “motion to proceed” requesting that the court rule on his motion for post-conviction relief “on its own merits and grant movant a new trial.” The State subsequently filed its response on September 11, 1985, and the trial court entered an order summarily denying the motion for post-conviction relief.
Appellant then filed a motion for rehearing, which the trial court denied on the basis that appellant had waived his right to an evidentiary hearing by urging the court “to rule on the basis of the pleadings without evidentiary hearing.” The last pleading filed by appellant was a “motion and request for clarification.” The last pleading filed by appellant was a “motion and request for clarification.” In that motion, appellant argued that he had not urged the court to rule on his motion without an evidentiary hearing and requested that the court attach the portion of the record from which it had construed such a request. Appellant’s motion for clarification was denied on January 17, 1986, and this appeal ensued.
Due to the language used by the trial court in its order denying the motion for rehearing, it is difficult to determine whether the court actually considered the State’s response in determining whether to grant an evidentiary hearing, or whether the court concluded that appellant had “waived” his right to an evidentiary hearing. Since we find no authority to indicate that an evidentiary hearing on a motion for post-conviction relief may be waived by a prisoner seeking relief, we reverse the order of denial. On remand, the trial court should consider the State’s response to properly determine whether an evidentiary hearing is required, and then proceed according to Rule 8.850, Fla.R.Crim.P. SMITH and ZEHMER, JJ1., concur.
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Overton v. State, 531 So. 2d 1382 (Fla. 1st DCA 1988)…t he had waived his right to an evidentiary hearing. On appeal, this court reversed and remanded with directions to the trial court to consider the state’s response, and to determine whether an evidentiary hearing was required. See Overton v. State, 494 So. 2d 527 (Fla. 1st DCA 1986). Thereafter, the trial court determined an evidentiary hearing was indicated, and appointed counsel to represent Overton. At the hearing, Overton presented an amended motion containing three new allegations pertaining to prosecu…