FRANCIS M. SORGMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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This case concerns an appeal from the denial of a motion for post-conviction relief based on ineffective assistance of counsel. The appellate court found the appellant's allegations facially sufficient and reversed the trial court's summary denial.
The appellate court held that the appellant's allegations of ineffective assistance of counsel were facially sufficient. Therefore, the trial court should not have summarily denied the motion.
[1] A trial court must attach portions of the record that conclusively show a defendant is entitled to no relief when denying a motion for post-conviction relief without an e…
[2] A defendant alleging ineffective assistance of counsel must provide specific details of counsel's alleged omissions or overt acts, including the substance of testimony an…
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Join FLexlaw to unlock all legal intelligence“Because the trial court denied appellant’s motion in summary fashion this court’s review is limited to determining whether the motion conclusively shows on its face that appellant is entitled to no relief.”
Establishes the standard of review for summary denials of post-conviction relief motions.
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Join FLexlaw to unlock all legal intelligenceThe appellant filed a motion for post-conviction relief alleging ineffective assistance of counsel, specifically that his attorney failed to interview…
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PER CURIAM.
Appellant filed a motion for post-conviction relief pursuant to Rule 3.850, Fla.R. Crim.P., and alleged ineffective assistance of counsel. The trial court denied the motion without an evidentiary hearing and without attaching a portion of the record which conclusively shows appellant is entitled to no relief.
Because the trial court denied appellant’s motion in summary fashion this court’s review is limited to determining whether the motion conclusively shows on its face that appellant is entitled to no relief. Thames v. State, 454 So. 2d 1061 (Fla. 1st DCA 1984).
A defendant alleging ineffective assistance of counsel must first allege a specific omission or overt act upon which his claim is based and such allegations must be in sufficient detail to apprise the court of the names of the witnesses, substance of their testimony, and how the omission prejudiced the outcome of the trial. Swain v. State, 502 So. 2d 494 (Fla. 1st DCA 1987).
Among the specific acts or omissions of counsel which appellant asserts to prove counsel’s ineffectiveness are counsel’s failure to interview and call witnesses appellant told counsel about who may have been able to cast doubt on appellant’s guilt and counsel’s failure to conduct an adequate pretrial investigation by deposing prospective witnesses including the alleged victim of the kidnapping for which appellant was convicted. (Appellant claims that the alleged kidnapping victim would have testified that she left the crime scene with appellant willingly.) Such failures can constitute ineffective assistance of counsel. Majewski v. State, 487 So. 2d 32 (Fla. 1st DCA 1986).
Since we fmd that appellant’s allegations are facially sufficient, we therefore reverse and remand with instructions to reconsider appellant’s 3.850 motion and to attach those portions of the file and record which conclusively show that appellant is entitled to no relief, or, alternatively, to grant an evidentiary hearing.
BOOTH, JOANOS and MINER, JJ., concur.
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Cited By (14 total)
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Highsmith v. State, 617 So. 2d 825 (Fla. 1st DCA 1993)…nclude the following allegations: (1) the identity of the prospective witnesses; (2) the substance of the witnesses’ testimony; and (3) an explanation as to how the omission of this evidence prejudiced the outcome of the trial. See Sorgman v. State, 549 So. 2d 686 (Fla. 1st DCA 1989); Robinson v. State, 516 So. 2d 20 (Fla. 1st DCA 1987); Swain v. State, 502 So. 2d 494 (Fla. 1st DCA 1987); Majewski, 487 So. 2d at 33. Our research has disclosed no authority for the state’s assertion that, not only must the def…
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Ford v. State, 825 So. 2d 358 (Fla. 2002)…have been able to cast doubt on the defendant’s [*361] guilt, and the defendant states in his motion the -witnesses’ names and the substance of their testimony, and explains how the omission prejudiced the outcome of the trial. See Sorgman v. State, 549 So. 2d 686 (Fla. 1st DCA 1989). Appellant’s motion met these requirements, and no record attachments refuted his allegations. 711 So. 2d at 1372. We agree with the analysis in Jackson and conclude that on the basis of the allegations in this petition that an…
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Jackson v. State, 711 So. 2d 1371 (Fla. 4th DCA 1998)…ses may have been able to cast doubt on the defendant’s guilt, and the defendant states in his motion the witnesses’ names and the substance of their testimony, and explains how the omission prejudiced the outcome of the trial. See Sorgman v. State, 549 So. 2d 686 (Fla. 1st DCA 1989). Appellant’s motion met these requirements, and no record attachments refuted his allegations. Appellant’s fourth ground concerned counsel’s failure to object to the prosecutor’s comments concerning Appellant’s post-arrest silen…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Majewski v. State, 487 So. 2d 32 (Fla. 1st DCA 1986)
- Thames v. State, 454 So. 2d 1061 (Fla. 1st DCA 1984)
- Swain v. State, 502 So. 2d 494 (Fla. 1st DCA 1987)