DAWSON EUGENE HAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dawson Havis appeals a trial court's summary denial of his post-conviction relief petition based on ineffective assistance of counsel. The appellate court reverses, holding that while ineffective assistance of counsel cannot be raised on direct appeal, it is a proper collateral attack issue under Florida Rule 3.850, and the trial court erred by summarily denying the petition without either attaching conclusive documentary evidence or holding an evidentiary hearing.
The trial court erred in summarily denying the petition. While ineffective assistance of counsel cannot be raised on direct appeal, it is a proper collateral attack issue under Rule 3.850. When a motion alleges facts that, if true, would entitle the defendant to relief, the trial court must either attach portions of the files and records conclusively showing the defendant is not entitled to relief or hold an evidentiary hearing.
[1] The issue of ineffective assistance of trial counsel may not be raised for the first time on direct appeal.
[2] A trial court should not summarily deny a petition for post-conviction relief if the petition alleges facts that, if true, would entitle the petitioner to relief.
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Join FLexlaw to unlock all legal intelligence“the issue of ineffective assistance of trial counsel may not be raised for the first time on direct appeal”
Establishes that ineffective assistance claims are not cognizable on direct appeal but must be raised collaterally
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Join FLexlaw to unlock all legal intelligenceHavis was convicted by jury on December 13, 1983, of trespass of a structure occupied by a human being and lewd, lascivious or indecent assault in the…
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MILLS, Judge.
Havis appeals from an order denying him post-conviction relief sought pursuant to Florida Rules of Criminal Procedure 3.850. We agree with Havis’ position that the trial court should not have summarily denied his petition and, therefore, reverse.
Havis was convicted on 13 December 1983, after a trial by jury, of trespass of a structure occupied by a human being and lewd, lascivious or indecent assault in the presence of a child under the age of 14. He received a sentence of 13 years. Following this a direct appeal was taken. By order of this court on 14 December 1984, Havis’ conviction and sentence were upheld. Havis v. State, 461 So. 2d 974 (Fla. 1st DCA 1984).
Herein, Havis contends he should be granted post-conviction relief on the ground of the ineffective assistance of counsel. The trial court summarily denied Havis’ motion, opining: “[T]he defendant had a full and complete jury trial and a plenary appeal and all matters raised in his motion could and should have been raised in said appeal.”
We would first point out that the trial court in its order incorrectly states that the issue of ineffective assistance of counsel was raised in Havis’ direct appeal. Havis’ direct appeal was initiated by the filing of a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and the only issue discussed in this court’s opinion was that of sentencing error in relation to the sentencing guidelines. More significantly, however, the trial court has overlooked the rule of law which holds that the issue of ineffective assistance of trial counsel may not be raised for the first time »n direct appeal. Smolen v. State, 468 So. 2d 518 (Fla. 1st DCA 1985); McKelvin v. State, 497 So. 2d 951 (Fla. 1st DCA 1986). Having determined that Havis’ motion for post-conviction relief addresses a matter which can be raised in a collateral attack, we would hasten to add that the motion alleges facts which, if true, would entitle Havis to relief. Therefore, pursuant to the dictates of Rule 3.850, the trial court should have attached to its order those portions of the files and records which conclusively show Havis is not entitled to any relief or the court should have held an evidentiary hearing on the matter. Calhoun v. State, 362 So. 2d 726 (Fla. 1st DCA 1978); Williams v. State, 440 So. 2d 512 (Fla. 4th DCA 1983). Neither action was taken below. Accordingly, we reverse and remand with directions to the trial court that it follow the requirements of Rule 3.850. Cookish v. State, 416 So. 2d 53 (Fla. 4th DCA 1982).
Reversed and remanded with directions.
BOOTH, C.J., and THOMPSON, J., concur.
MILLS, Judge.
The State urges, and we agree, that our opinion should be modified to direct the trial court to comply with Rule 3.850 as amended in 1984. The opinion is therefore modified to require the trial court to (1) attach those portions of the files and records conclusively showing the defendant is entitled to no relief, or (2) conduct further proceedings in accordance with Rule 3.850. Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986); Wright v. State, 492 So. 2d 394 (Fla. 1st DCA 1986); Price v. State, 487 So. 2d 34 (Fla. 1st DCA 1986).
BOOTH, C.J., and THOMPSON, J., concur.
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Cited By
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Rogers v. State, 510 So. 2d 1230 (Fla. 1st DCA 1987)…f, the rule requires the trial court (1) to attach to the order a copy of that portion of the record which conclusively shows the prisoner is entitled to no relief, or (2) to conduct further proceedings in accordance with Rule 3.850. Havis v. State, 506 So. 2d 3, 4 (Fla. 1st DCA 1987); Hampton v. State, 504 So. 2d 57 (Fla. 1st DCA 1987); Gust v. State, 504 So. 2d 61 (Fla. 1st DCA 1987); Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986). Neither course was followed in this case. The order clearly states th…
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Dawson Eugene Havis v. State of Fla. & George L. Carlisle, 555 So. 2d 417 (Fla. 1st DCA 1989)…er of denial. This court reversed and remanded the case with directions to the lower court to either attach to its order those portions of the record conclusively refuting the allegations of the motion or hold an evidentiary hearing. Havis v. State, 506 So. 2d 3 (Fla. 1st DCA 1987). On June 19, 1987, the lower court entered an order denying Havis’s rule 3.850 motion and indicating and attaching the portions of the record that it contends refute the allegations of the motion. We agree with Havis that these p…1 / 4
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Keller v. State, 551 So. 2d 1269 (Fla. 1st DCA 1989)…entitled to no relief. Harden v. State, 528 So. 2d 544 (Pla. 1st DCA 1988); Russell v. State, 521 So. 2d 379 (Fla. 1st DCA 1988); Knight v. State, 517 So. 2d 87 (Pla. 1st DCA 1987); Hall v. State, 511 So. 2d 676 (Fla. 1st DCA 1987); Havis v. State, 506 So. 2d 3 (Fla. 1st DCA 1987). This case is REVERSED and REMANDED to the trial court for further proceedings. WIGGINTON, J., concurs. BOOTH, J., dissents, with opinion.…
Authorities Cited (13 total)
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986)
- Price v. State, 487 So. 2d 34 (Fla. 1st DCA 1986)
- Calhoun v. State, 362 So. 2d 726 (Fla. 1st DCA 1978)
- Wright v. State, 492 So. 2d 394 (Fla. 1st DCA 1986)
- Pressler v. Cmty. Hosp. OF the Palm Beaches, Inc., 416 So. 2d 53 (Fla. 4th DCA 1982)
- Cookish v. State, 416 So. 2d 53 (Fla. 4th DCA 1982)
- Smolen v. State, 468 So. 2d 518 (Fla. 1st DCA 1985)
- McKELVIN v. State, 497 So. 2d 951 (Fla. 1st DCA 1986)
- Surratt v. State, 461 So. 2d 974 (Fla. 5th DCA 1984)