ARBA EARL BARR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Arba Earl Barr appeals the denial of his postconviction motion alleging ineffective assistance of counsel because his trial counsel failed to adequately explain that electing a guideline sentence would make him ineligible for parole. The court reverses and remands because Barr should have been present at the evidentiary hearing on his ineffective assistance claim.
The court held that Barr should have been present at the evidentiary hearing on his postconviction motion. Given counsel's ambiguous testimony about what was discussed regarding the guideline sentence, Barr's opportunity to cross-examine counsel and offer his own testimony was particularly appropriate. The court expressed no opinion on whether appointed counsel was necessary at the hearing.
[1] A defendant has the right to be present at an evidentiary hearing on a motion for postconviction relief when the hearing involves ambiguous testimony regarding conversati…
[2] A defendant's right to be present at an evidentiary hearing on a motion for postconviction relief is particularly important when the defendant may need to offer testimony…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Given trial counsel's ambiguous testimony regarding what was and was not said in her conversations with Barr, the opportunity to cross-examine and to offer testimony on his own behalf seems particularly appropriate.”
Establishes the core reason for reversal—that Barr's absence from the hearing was error given counsel's unclear testimony about what was communicated.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBarr's trial counsel recommended that Barr elect to be sentenced under the sentencing guidelines. Barr claims counsel failed to explain that such a se…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Right To Be Present At Hearing cases and more on FLexlaw
PER CURIAM.
Arba Earl Barr appeals the denial of his motion for postconviction relief. The motion alleged that Barr’s trial counsel, in recommending that Barr elect to be sentenced under the sentencing guidelines, failed to explain that Barr would thereby be ineligible for parole.* If true, this could constitute ineffective assistance of counsel. See, e.g., Highsmith v. State, 493 So. 2d 533 (Fla. 2d DCA 1986).
The trial court conducted an evidentiary hearing on the motion. Barr’s trial counsel was the sole witness at the hearing. She stated that Barr “understood or it was explained to him the significance of [a] guideline sentence.” However, counsel admitted that she had “no specific recollections of the conversations that I had with Mr. Barr.” In denying the motion the trial court also referred to a prior pro se pleading submitted by Barr which, it is conceded, “does not specifically state he understood there would be no parole.”
On appeal Barr argues that he should have been present for the evidentiary hearing. See, e.g., Diggs v. State, 504 So. 2d 792 (Fla. 2d DCA 1987). We agree. Given trial counsel’s ambiguous testimony regarding what was and was not said in her conversations with Barr, the opportunity to cross-examine and to offer testimony on his own behalf seems particularly appropriate. We express no opinion as to Barr’s additional contention that counsel should have been appointed to represent him at the hearing. The necessity for this is not so readily apparent, insofar as the sole issue presented by the motion is a relatively simple one which Barr appears to understand clearly. If, after remand, Barr should renew his request, the trial court should exercise its discretion using the standards set forth in Williams v. State, 472 So. 2d 738 (Fla.1985) and Graham v. State, 372 So. 2d 1363 (Fla.1979).
Reversed and remanded for a new evidentiary hearing.
RYDER, A.CJ., and LEHAN and PATTERSON, JJ., concur. *
The guidelines apparently recommended a sentence in the five-year range. However, the trial court departed from the recommendation and imposed a sentence of 114 years. The sentence has been affirmed in a previous appeal. Barr v. State, 473 So. 2d 25 (Fla. 2d DCA 1985).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Vann v. State, 569 So. 2d 867 (Fla. 2d DCA 1990)…ed as “upset” rather than uncooperative. Vann argues, and we agree, that his presence was necessary at the evidentiary hearing, at least in the absence of court-appointed counsel. See, e.g., Clark v. State, 491 So. 2d 545 (Fla.1986); Barr v. State, 548 So. 2d 819 (Fla. 2d DCA 1989). In so holding we express no opinion as to the credibility of counsel’s testimony. Rather, we believe due process requires that such testimony be subject to cross-examination and/or rebuttal by whatever evidence Vann may seek to p…
-
Donnell Wilson v. State, 566 So. 2d 604 (Fla. 2d DCA 1990)…. Accordingly, we remand this case for further proceedings consistent with Florida Rule of Criminal Procedure 3.850. In the event an evidentiary hearing is deemed to be necessary, it is probably advisable for Wilson to be present. See Barr v. State, 548 So. 2d 819 (Fla. 2d DCA 1989). Reversed. SCHOONOVER, C.J., and RYDER and ALTENBERND, JJ., concur.…
Authorities Cited
- The Petition of Andrew A. Graham v. State, 372 So. 2d 1363 (Fla. 1979)
- Williams v. State, 472 So. 2d 738 (Fla. 1985)
- Arba Earl Barr v. State, 473 So. 2d 25 (Fla. 2d DCA 1985)
- Kalway v. State, 504 So. 2d 792 (Fla. 2d DCA 1987)
- Highsmith v. State, 493 So. 2d 533 (Fla. 2d DCA 1986)