JERRY WHITFIELD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the trial court's summary denial of a Rule 3.850 motion for post-conviction relief because the record did not conclusively refute allegations of ineffective assistance of counsel regarding witness investigation and the improper use of uncounselled prior convictions in the sentencing guidelines.
A trial court must not summarily deny a Rule 3.850 motion where the allegations are not conclusively refuted by the record, and claims of ineffective assistance of counsel for failing to investigate impeaching witnesses and improper use of uncounselled convictions in sentencing require an evidentiary hearing or documentary refutation.
[1] A trial court must not summarily deny a Rule 3.850 motion for post-conviction relief unless the record conclusively refutes the sworn allegations, and allegations of inef…
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Join FLexlaw to unlock all legal intelligence“Since we must accept as true the sworn allegations of the motion which was filed pursuant to Florida Rule of Criminal Procedure 3.850 where they are not conclusively refuted by the record”
Establishing the standard for reviewing summary denials of post-conviction relief motions
Whitfield filed a Rule 3.850 motion alleging ineffective assistance of trial counsel for failing to investigate and call witnesses to impeach the vict…
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WARNER, Judge.
Since we must accept as true the sworn allegations of the motion which was filed pursuant to Florida Rule of Criminal Procedure 3.850 where they are not conclusively refuted by the record, Harich v. State, 484 So. 2d 1239 (Fla.1986), we reverse the trial court’s order summarily denying appellant’s motion for post-conviction relief and remand for further proceedings on the motion. Neither the trial court’s order, the response by the state, nor anything in the record submitted to us on appeal even mentions, let alone conclusively refutes, these allegations of the motion charging ineffective assistance of trial counsel in failing to investigate and call witnesses who would substantially impeach the victim’s testimony. See Williams v. State, 447 So. 2d 442 (Fla. 5th DCA 1984). Furthermore, appellant claims that uncounselled prior convictions were improperly used in the guidelines scoresheet. See Cooper v. State, 538 So. 2d 105 (Fla. 4th DCA 1989). If the sentence was enhanced for this reason, then appellant has stated a ground for relief from an illegal sentence. Since the record does not conclusively refute this allegation, summary denial of the motion was improper. Hyder v. State, 526 So. 2d 780 (Fla. 2d DCA 1988). The remaining points in appellant’s motion are without merit. We therefore remand to the trial court either for an attachment to the order of portions of the record conclusively refuting these allegations or to hold an evidentiary hearing thereon.
Reversed and remanded for further proceedings.
HERSEY, C.J., and STONE, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Harich v. State, 484 So. 2d 1239 (Fla. 1986)
- Williams v. State, 447 So. 2d 442 (Fla. 5th DCA 1984)
- Hyder v. State, 526 So. 2d 780 (Fla. 2d DCA 1988)
- Cooper v. State, 538 So. 2d 105 (Fla. 4th DCA 1989)