RAFAEL GONZALEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Rafael Gonzalez appealed the trial court's denial of his third Rule 3.850 motion for post-conviction relief, claiming ineffective assistance of counsel because his trial attorney chose to present an alibi defense rather than an insanity defense. The appellate court affirmed the denial, finding both that the claim constituted an abuse of the Rule 3.850 procedure and that the record conclusively showed no ineffective assistance under the Strickland standard.
The trial court's denial of the Rule 3.850 motion was affirmed on two independent grounds: (1) the ineffective assistance claim should have been raised in a prior motion and constituted an abuse of Rule 3.850 procedure; and (2) even if procedurally proper, the record conclusively shows counsel's trial strategy was reasonable and the defendant cannot establish prejudice under Strickland.
[1] A trial court's summary denial of claims in a rule 3.850 motion will be affirmed if the claims are conclusively refuted by the record.
[2] A per curiam affirmance without an opinion on direct appeal does not establish whether a specific issue was preserved for appeal or denied on the merits.
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Join FLexlaw to unlock all legal intelligence“The decision by trial counsel to present an alibi defense rather than an insanity defense was reasonable trial strategy.”
Establishes that the trial court found counsel's strategic choice was sound under the Strickland framework.
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Join FLexlaw to unlock all legal intelligenceGonzalez was convicted in 1980 of first degree murder, robbery, attempted second degree murder, aggravated battery, and possession of a firearm during…
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PER CURIAM.
This is an appeal from an order of the trial court denying appellant’s third motion to vacate judgment and sentence pursuant to Florida Rule of Criminal Procedure 3.850.1 Appellant’s motion alleged ineffective assistance of counsel relative to the 1980 trial which resulted in appellant's convictions of first degree murder, robbery, attempted second degree murder, aggravated battery and possession of a firearm during the commission of a felony.2 Specifically, appellant contended that his counsel was ineffective in choosing to present an alibi defense, rather than an insanity defense.
After a non-evidentiary hearing, the trial court entered its order denying appellant’s Rule 3.850 motion. The court’s order set forth the following findings of fact and conclusions of law:
I.
This is the third motion to vacate filed by the defendant. The ground for relief raised in this third Motion, ineffective assistance of counsel, could have and should have been raised in the prior motions. The failure to raise this ground in a prior motion constitutes an abuse of the procedure governed by Rule 3.850, which warrants dismissal of the motion.
II.
The files and records of this case conclusively show that the defendant cannot establish that he was denied the effective assistance of counsel under the standard announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court specifically finds that the decision by trial counsel to present an alibi defense rather than an insanity defense was reasonable trial strategy. The Court also finds that even if trial counsel had presented an insanity defense as it is now argued he should have, it is not reasonably probable that the result of the defendant’s trial would have been different. Accordingly, the requisite prejudice cannot be shown.
WHEREFORE, the defendant’s Motion for Post Conviction Relief, filed pursuant to Rule 3.850 Florida Rules of Criminal Procedure, is hereby DENIED because it constitutes an abuse of the procedures governed by the Rule. Moreover, if there had not been the aforementioned procedural basis for denying the motion it would still be denied because the files and records of the case conclusively show that the defendant was not denied the effective assistance of counsel.
We approve and adopt the trial court’s findings of fact, conclusions of law and order denying the motion for postcon-viction relief upon a holding that the record conclusively shows appellant is not entitled to the relief sought in this Rule 3.850 motion. See Christopher v. State, 489 So. 2d 22 (Fla.1986); Witt v. State, 465 So. 2d 510 (Fla.1985).
Affirmed.
. Appellant’s two prior 3.850 motions were denied by the trial court; review in this court of the orders denying relief ultimately resulted in affirmance. Gonzalez v. State, 432 So. 2d 171 (Fla. 3d DCA 1983) (issues regarding indictment defect and improper jury instruction not properly raised in 3.850 motion; denial of motion after evidentiary hearing affirmed); Gonzalez v. State, 451 So. 2d 1041 (Fla. 3d DCA 1984) (motion’s allegation that defendant had been rendered by medication unable to assist in preparation of his defense at trial required trial court to either attach record portions conclusively refuting allegation or conduct an evidentiary hearing; remanded); Gonzalez v. State, 476 So. 2d 329 (Fla. 3d DCA 1985) (affirming denial of motion upon remand).
. We affirmed the convictions, with a modification of sentence to allow credit for time served. Gonzalez v. State, 410 So. 2d 657 (Fla. 3d DCA 1982).
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Waldemar Morales v. State, 513 So. 2d 695 (Fla. 3d DCA 1987)…is of the acceptance of this version of events below, which, since it is supported by the evidence, we are required to follow on appeal, Stewart v. State, 481 So. 2d 1210 (Fla.1985); Middleton v. State, 465 So. 2d 1218 (Fla.1985); Gonzalez v. State, 510 So. 2d 633 (Fla. 3d DCA 1987), the issue becomes whether the decision not to offer the tape involves, as a matter of law, ineffective assistance of counsel under the two-pronged “non-conflict” test of Strickland and Knight v. State, 394 So. 2d 997 (Fla.1981).…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Tortoise Island Cmtys., Inc. v. The Moorings Ass'n, Inc., 489 So. 2d 22 (Fla. 1986)
- Witt v. State, 465 So. 2d 510 (Fla. 1985)
- Gonzalez v. State, 451 So. 2d 1041 (Fla. 3d DCA 1984)
- Gonzalez v. State, 410 So. 2d 657 (Fla. 3d DCA 1982)
- State v. Golden, 410 So. 2d 657 (Fla. 3d DCA 1982)
- Gonzalez v. State, 432 So. 2d 171 (Fla. 3d DCA 1983)
- Gonzalez v. State, 476 So. 2d 329 (Fla. 3d DCA 1985)