BRUCE D. ROGERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bruce Rogers appealed the summary denial of his Rule 3.850 post-conviction motion claiming ineffective assistance of counsel and other grounds for relief. The court reversed and remanded, holding that while non-ineffective-assistance claims were procedurally barred, the ineffective assistance allegations stated a prima facie case requiring either further proceedings or a record-based ruling by the trial court.
The court reversed the trial court's order as to ineffective assistance of counsel claims and remanded for proper proceedings. When a 3.850 motion makes out a prima facie case, the trial court must either attach the portion of the record conclusively showing no relief is warranted or conduct further proceedings; summary denial without either showing was improper. Non-ineffective-assistance claims were affirmed as properly barred by procedural bar rules.
[1] Claims predicated on allegations of ineffective assistance of counsel are cognizable through collateral attack and may set out a prima facie case for relief.
[2] Claims that could have been raised on direct appeal are precluded from consideration in a motion for post-conviction relief.
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Join FLexlaw to unlock all legal intelligence“only those claims predicated on allegations of ineffective assistance of counsel are cognizable through collateral attack and set out a prima facie case for relief. The others could have been raised on direct appeal and are, therefore, precluded from consideration in a 3.850 motion.”
Establishes the procedural bar against raising non-ineffective-assistance claims in post-conviction collateral attack
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Join FLexlaw to unlock all legal intelligenceRogers filed a post-conviction relief motion under Florida Rule of Criminal Procedure 3.850 presenting three grounds for relief with multiple allegati…
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JOANOS, Judge.
Appellant seeks review of the trial court's summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse in part, and remand with directions.
Although appellant presents three grounds for relief which include a large number of allegations under each, only those claims predicated on allegations of ineffective assistance of counsel are cognizable through collateral attack and set out a prima facie case for relief. The others could have been raised on direct appeal and are, therefore, precluded from consideration in a 3.850 motion. Mikenas v. State, 460 So. 2d 359, 361 (Fla.1984); Richardson v. State, 491 So. 2d 1242, 1243 (Fla. 1st DCA 1986). The trial court’s order denying the motion states that after a review of the motion, the state’s response thereto, appellant’s rebuttal to the state’s response, and the official court file, the court found the motion insufficient upon its face to support the relief requested.
Before ruling on the merits of appellant’s claims, we requested the Attorney General’s office to file a brief addressing only the allegations of ineffective assistance of counsel which appellant raised in the motion. Thereafter, we granted the state’s requests to supplement the record on appeal and for an extension of time to file a brief. The state’s latest motion asks that we relinquish jurisdiction to the trial court for the purpose of clarification of the order denying relief. We decline the request because it appears to be more expedient to reverse and remand for further proceedings as it appears that the trial court’s order is deficient.
Where, as in the instant case, a 3.850 motion makes out a prima facie case for relief, 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 that the trial court consulted the official court file to determine the sufficiency of the motion’s allegations. We find this to be a tacit recognition that the motion presents a facially sufficient claim for relief. Accordingly, we reverse and remand with directions to the trial court to comply with Rule 3.850. Our reversal concerns only appellant’s ineffective assistance of counsel claims. In all other respects, the order is affirmed.
Reversed and remanded for proceedings consistent with this opinion.
WIGGINTON and ZEHMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Bateson v. State, 516 So. 2d 280 (Fla. 1st DCA 1987)…l battery and kidnapping. The other allegations raised in the motion were or could have been raised on direct appeal and are, therefore, precluded from review in a rule 3.850 motion. Mikenas v. State, 460 So. 2d 359, 361 (Fla.1984); Rogers v. State, 510 So. 2d 1230 (Fla. 1st DCA 1987). Before deciding the merits of appellant’s claims, we requested the Office of the Attorney General to file a brief addressing only the allegations of ineffective assistance of counsel raised in the motion. After careful consider…
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Rogers v. State, 567 So. 2d 483 (Fla. 1st DCA 1990)…986). The case again came before this court on appeal from a third denial of postconviction relief, resulting in an affirmance as to all grounds except that of ineffective assistance of counsel, and reversal for further proceedings. Rogers v. State, 510 So. 2d 1230 (Fla. 1st DCA 1987). The present appeal js taken from denial of the motion after evidentiary hearing on the ineffective assistance claims. . In his reply brief, appellant concedes "for purposes of argument,” that appellant’s testimony was necessary…
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Voshell v. State, 174 So. 3d 1089 (Fla. 1st DCA 2015)…ceives a harsher sentence than that which was offered. This is not the argument raised by the appellant in the instant motion. The plea form attached by the trial coux*t does not conclusively refute the appellant’s assertions. See Rogers v. State, 510 So. 2d 1230 (Fla. 1st DCA 1987) (discussing that when a motion is facially sufficient the trial court shall attach the portion of the record that conclusively refutes the defendant’s claim or shall hold an evi-dentiary hearing on it); Alfred v. State, 998 So. 2…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986)
- Mikenas v. State, 460 So. 2d 359 (Fla. 1984)
- Dawson Eugene Havis v. State, 506 So. 2d 3 (Fla. 1st DCA 1987)
- Richardson v. State, 491 So. 2d 1242 (Fla. 1st DCA 1986)
- Buda v. Buda, 504 So. 2d 57 (Fla. 2d DCA 1987)
- Hampton v. State, 504 So. 2d 57 (Fla. 1st DCA 1987)
- Gust v. State, 504 So. 2d 61 (Fla. 1st DCA 1987)
- Anton Maeder v. Honig, 504 So. 2d 61 (Fla. 4th DCA 1987)