SAMUEL GARDNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the trial court's denial of post-conviction relief on grounds that speedy trial claims should have been raised on direct appeal and sentencing guidelines do not apply to capital sexual battery convictions, but reversed and remanded grounds alleging ineffective assistance of counsel for proper consideration.
A trial court's summary denial of post-conviction relief was proper as to speedy trial and guideline sentencing claims but improper as to ineffective assistance of counsel claims, which require further proceedings.
[1] Speedy trial claims that could have been raised on direct appeal are procedurally barred from consideration in a Rule 3.850 post-conviction motion.
[2] Sentencing guidelines under Florida law do not apply to capital felonies such as sexual battery of a child under age 12.
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Join FLexlaw to unlock all legal intelligenceSamuel Gardner appealed a summary denial of his Rule 3.850 post-conviction motion, which included claims of speedy trial denial, right to elect guidel…
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SHIVERS, Chief Judge.
Appellant, Samuel Gardner, appeals the trial court’s summary denial of his motion for post-conviction relief filed pursuant to Fla.R.Crim.P. 3.850. We affirm the trial court’s denial of relief on grounds 3 and 5 of the motion, in which appellant alleged, respectively, that he was denied a speedy trial and the right to elect a guideline sentence. First, appellant’s speedy trial argument could and should have been raised on direct appeal and, consequently, was improperly raised pursuant to Rule 3.850. Second, the sentencing guidelines are not applicable to appellant’s underlying conviction and sentence for the capital felony of sexual battery of a child under the age of 12. Section 921.001(4)(a), Florida Statutes.
Grounds 1, 2, 4, and 6 of appellant’s motion, however, all state claims of ineffective assistance of counsel and, as such, were properly raised pursuant to Rule 3.850. We therefore reverse and remand the summary denial of relief on those grounds, with instructions for the trial court to either attach portions of the files and records conclusively showing appellant to be entitled to no relief or, in the alternative, to order the State Attorney to file an answer and thereafter to determine whether an evidentiary hearing is necessary. Fla.R.Crim.P. 3.850.
AFFIRMED in part, REVERSED, and REMANDED.
WENTWORTH and WIGGINTON, JJ., concur.
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Reaves v. State, 593 So. 2d 1150 (Fla. 1st DCA 1992)…l court’s ruling was not proper with respect to appellant’s allegations of ineffective assistance of trial counsel, since such claims must be raised in a motion for post-conviction relief. King v. Dugger, 555 So. 2d 355 (Fla.1990); Gardner v. State, 550 So. 2d 176 (Fla. 1st DCA 1989); Chambers v. State, 530 So. 2d 452, 453 (Fla. 1st DCA 1988). To establish ineffective assistance of trial counsel, appellant was required to show that (1) his counsel’s performance was deficient, and (2) a reasonable probabilit…
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Wooden v. State, 589 So. 2d 372 (Fla. 1st DCA 1991)…court was correct as to the first ground, and we affirm as to that ground. However, it is well-settled that ineffective assistance of counsel is not properly raised on direct appeal, but rather by motion pursuant to Rule 3.850. See Gardner v. State, 550 So. 2d 176 (Fla. 1st DCA 1989). Based on this error, this court requested a response from the Attorney General’s office pursuant to Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986). The state responds that, as to the allegation of ineffective assistance, the…
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Thornburg v. State, 591 So. 2d 1121 (Fla. 1st DCA 1992)…portion of the record attached to the order denying relief, the cause is remanded with directions to attach those portions of the record which demonstrate that appellant is entitled to no relief, or for an evidentiary hearing. See Gardner v. State, 550 So. 2d 176 (Fla. 1st DCA 1989). ERVIN, J., and WENTWORTH, Senior Judge, concur.…
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