DONALD VANN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Vann appeals the denial of his motion for postconviction relief claiming ineffective assistance of counsel regarding his guilty plea. The court reverses and remands for a new evidentiary hearing because Vann was not present at the initial hearing and was denied appointed counsel, violating due process.
Due process requires that a defendant's presence be secured at a postconviction evidentiary hearing on an ineffective assistance claim, at least absent court-appointed counsel, so that counsel's testimony can be subject to cross-examination and rebuttal.
[1] A defendant has a due process right to be present at an evidentiary hearing on a motion for postconviction relief, particularly when the hearing involves testimony from d…
[2] A prior motion seeking only to correct a sentence under Florida Rule of Criminal Procedure 3.800(a) does not preclude a subsequent motion for postconviction relief under…
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Join FLexlaw to unlock all legal intelligence“Vann argues, and we agree, that his presence was necessary at the evidentiary hearing, at least in the absence of court-appointed counsel.”
The court's holding that due process requires the defendant's presence at postconviction hearings on ineffective assistance claims.
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Join FLexlaw to unlock all legal intelligenceVann was charged with sexual battery and, on counsel's recommendation, entered a guilty plea in exchange for probation. Vann claims he maintained his …
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PER CURIAM.
Donald Vann appeals the denial of his motion for postconviction relief. We reverse.
The trial court originally denied the motion without an evidentiary hearing, finding that it was Vann’s third. However, both previous motions sought only to correct the sentence and were filed under Florida Rule of Criminal Procedure 3.800(a), not rule 3.850. Thus, on appeal we held that the rule’s proscription of successive motions was not applicable in this instance. Turning to the merits of the motion, we found that Vann had set forth a facially sufficient claim of ineffective assistance of counsel. Vann v. State, 561 So. 2d 21 (Fla. 2d DCA 1990).
After remand, the trial court conducted a hearing on the motion. Vann was not present for that hearing, nor was an attorney appointed to represent him. After hearing from the prosecutor and from Vann’s trial counsel, the court again denied the motion. The claim of ineffectiveness relates to counsel's recommendation that Vann enter a plea in this case. Vann was charged with sexual battery. He now states that he consistently maintained his innocence, but that he was addicted to crack cocaine and needed some kind of help. Counsel originally viewed this as a triable case, particularly since the alleged victim was refusing to cooperate with the state. Later, however, counsel informed Vann that the state had offered probation in exchange for his plea. Vann initially refused, but counsel asserted that Vann’s prior record would result in a harsh sentence were he to be convicted at trial. Counsel also stated that the victim was not essential to the prosecution of the case. Finally, counsel assured Vann he could get drug treatment if he were placed on probation. Vann, who complains that adequate drug treatment was not forthcoming, was unable to comply with the requirements of his probation and, upon revocation, was sentenced to twenty-two years. Now Vann contends that there was no physical evidence linking him to the offense and thus that counsel should have known that no prosecution could go forward without a victim.
At the evidentiary hearing defense counsel suggested to the court that Vann should be present to cross-examine him regarding his representation. Instructed to proceed, he characterized the state’s case as “sorry” but stated that Vann, who is black, was reluctant to face trial for assaulting a white victim. The victim was described 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 produce.
Reversed and remanded for a new evidentiary hearing.
CAMPBELL, A.C.J., and THREADGILL and PATTERSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Logan v. State, 619 So. 2d 350 (Fla. 2d DCA 1993)…ective assistance. Lanier v. State, 478 So. 2d 1184 (Fla.2d DCA 1985). In fact, Logan makes exactly this claim. Moreover, he is not barred from doing so solely because he previously attempted to correct the sentence via rule 3.800(a). Vann v. State, 569 So. 2d 867 (Fla.2d DCA 1990). The state also contended that, even if Logan’s assertions were true, the error is harmless. Since at least one of the case numbers below represented a violation of probation, the court could have “bumped” the recommended sentence…
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Horatio E. Butler v. State, 855 So. 2d 119 (Fla. 1st DCA 2003)…PER CURIAM. AFFIRMED. See Banks v. State, 801 So. 2d 153 (Fla. 1st DCA 2001), review granted, 826 So. 2d 991, 842 So. 2d.842 (Fla 2003); Regan v. State, 787 So. 2d 265 (Fla. 1st DCA 2001); Vann v. State, 569 So. 2d 867 (Fla. 2nd DCA 1990); Gust v. State, 535 So. 2d 642 (Fla. 1st DCA 1988); Fla. R.Crim. P. 3.850(b). BOOTH, DAVIS and PADOVANO, JJ., concur.…
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Thompson v. State, 570 So. 2d 1098 (Fla. 2d DCA 1990)…the transcript of the [*1099] September 20,1990 proceeding only reveals that the trial judge stated he would never say anything like that and thought the allegation “ludicrous.” The requirements of due process were not satisfied. See Vann v. State, 569 So. 2d 867 (Fla. 2d DCA 1990). Accordingly, we reverse the summary denial of Thompson’s motion and remand the case to the trial court. On remand, unless the case files and records conclusively show that Thompson is not entitled to relief, the trial court sha…
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
- Clark v. State, 491 So. 2d 545 (Fla. 1986)
- Arba Earl Barr v. State, 548 So. 2d 819 (Fla. 2d DCA 1989)
- Vann v. State, 561 So. 2d 21 (Fla. 2d DCA 1990)
- Harris v. State, 561 So. 2d 21 (Fla. 1st DCA 1990)