KENDRICK CROTTY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kendrick Crotty appealed the trial court's summary denial of his Rule 3.850 post-conviction relief motion challenging his armed burglary and grand theft convictions and sentences. The appellate court reversed and remanded, finding that two of his three grounds—an allegedly illegal split sentence and a double jeopardy claim—stated legally sufficient grounds for relief that required an evidentiary hearing rather than summary denial.
The court held that Crotty's claims regarding the illegal split sentence and double jeopardy stated legally sufficient grounds for relief requiring consideration under Rule 3.850, while the ineffective assistance of counsel claim based on waiver of appellate rights is more appropriately raised in a habeas corpus petition. The trial court erred in summarily denying relief on the first two grounds.
[1] A claim of ineffective assistance of counsel based on the waiver of the right to appeal is not cognizable in a motion for post-conviction relief, but may be the subject o…
[2] A motion for post-conviction relief is not rendered invalid by a notary's failure to explicitly identify the affiant when the context clearly indicates the affiant's iden…
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Join FLexlaw to unlock all legal intelligence“As for this latter ground, it is not appropriate for post-conviction relief. Instead, it may be the subject of a potential petition for writ of habeas corpus.”
Establishes that ineffective assistance claims based on waiver of appellate rights must be pursued through habeas corpus, not Rule 3.850 proceedings.
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Join FLexlaw to unlock all legal intelligenceCrotty was convicted and sentenced for armed burglary and grand theft. He filed a Rule 3.850 motion raising three grounds for post-conviction relief: …
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PER CURIAM.
Kendrick Crotty filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 in the Broward circuit court, which summarily denied relief without explanation or attachment of supporting portions of the record. Crotty, who challenged his conviction and sentences for armed burglary and grand theft, appeals the trial court’s summary denial of relief.
In his motion, Crotty identified three grounds for post-conviction relief. First, he argued that he was given an illegal split sentence. Next, he claimed that his conviction and sentence for two separate crimes, based on the same act, violated his right to protection from double jeopardy. His third claim was that he was deprived of effective assistance of trial counsel who waived his right to appeal.
As for this latter ground, it is not appropriate for post-conviction relief. Instead, it may be the subject of a potential petition for writ of habeas corpus. On grounds one and two, however, appellant stated legally sufficient grounds for due consideration under rule 3.850.
As for these two grounds, the state in its response filed in the trial court argued that they too were inadequate because the motion lacked an oath as required under rule 3.850. The motion did contain an oath, but the notary public who notarized appellant’s oath did not identify appellant as the one taking the oath. This hypertechnical argument is without merit. A plain review of the language identifies the one taking the oath as the defendant in the rule 3.850 proceedings. Appellant is the only defendant, thus leaving no doubt that it is his oath being notarized.
Furthermore, a memorandum of law follows, whereupon appellant verifies all preceding pages. This verification is then notarized again. To be sure, appellant’s motion and memorandum complies with rule 3.850 and Scott v. State, 464 So. 2d 1171 (Fla.1985).
The state also argues that the motion is misleading for failure to identify a previously filed motion for mitigation of sentence, which was denied September 20, 1989, and because it consists of mere con-clusory allegations without factual support. These arguments are also without merit. The motion does adequately state grounds for review under rule 3.850. As such, the trial court erred in summarily denying relief under grounds one and two.
We reverse and remand to the trial court as to grounds one and two only, for an evidentiary hearing or for attachment to the trial court’s order of that portion of the record showing that movant is not entitled to relief. Gentry v. State, 464 So. 2d 659 (Fla.1985).
REVERSED and REMANDED.
GUNTHER and POLEN, JJ„ concur. STONE, J., concurs specially with opinion.
STONE, Judge,
concurring specially.
I concur only to note that I see no basis in the petition to require an evidentiary hearing on these grounds, but only the attachment of appropriate documents from the trial court record.
Cases With Similar Vibessemantic neighbors from the corpus
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Kendall v. State, 619 So. 2d 515 (Fla. 4th DCA 1993)…th the technical requirements of section 117.05(16), Florida Statutes (Supp.1992), which require the notary to state whether the affiant was personally known to him or her, or whether the affiant produced identification. However, in Crotty v. State, 568 So. 2d 1328 (Fla. 4th DCA 1990), this court rejected a similar challenge to a rule 3.850 motion’s notary section. We find no case law support for the trial court’s summary rejection of the motion for this reason. The trial court also denied relief on the groun…
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Gabelus Francois v. State, 575 So. 2d 805 (Fla. 4th DCA 1991)…PER CURIAM. We reverse the summary denial of appellant’s motion filed pursuant to rule 3.850, Florida Rules of Criminal Procedure, and remand with direction for consideration upon the merits. See Crotty v. State, 568 So. 2d 1328 (Fla. 4th DCA 1990). DOWNEY, GLICKSTEIN and WARNER, JJ., concur.…
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Petrie v. State, 622 So. 2d 119 (Fla. 4th DCA 1993)…ither personally known to the notary or that he produced identification. This court has held that the summary denial of a rule 3.850 motion, for this particular reason, is error. Kendall v. State, 619 So. 2d 515 (Fla. 4th DCA 1993); Crotty v. State, 568 So. 2d 1328 (Fla. 4th DCA 1990). In reviewing the claims contained in the motion we have concluded that the only one which merits reversal is the claim that counsel was ineffective in allowing appellant to proceed to trial while under psychotropic medication…
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
- Scott v. State, 464 So. 2d 1171 (Fla. 1985)
- Fla. Atl. Assocs. v. Belmont, 464 So. 2d 659 (Fla. 4th DCA 1985)