SHERRILL B. TURNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A motion for post-conviction relief should not be summarily denied without an evidentiary hearing unless the motion and records conclusively show the movant is entitled to no relief.
Appellant sought post-conviction relief, alleging ineffective assistance of counsel for failure to advise him of his right to appeal. The trial court …
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PER CURIAM.
Sherrill B. Turner appeals the summary denial of his Rule 3.850 motion for post-conviction relief. We reverse.
A motion for post-conviction relief should not be summarily denied without an evidentiary hearing unless the motion and records conclusively show that the movant is entitled to no relief. See Kennedy v. State, 547 So. 2d 912 (Fla.1989); Lemon v. State, 498 So. 2d 923 (Fla.1986); Harich v. State, 484 So. 2d 1239 (Fla.), cert. denied, Harich v. Wainwright, 476 U.S. 1178, 106 S.Ct. 2908, 90 L.Ed.2d 993 (1986). When there is no evidentiary hearing, and the court fails to attach records refuting the movants’ claim, as in this case, review is limited to a determination as to whether the motion, on its face, conclusively shows that the defendant is entitled to no relief. See Gorham v. State, 521 So. 2d 1067 (Fla.1988); Squires v. State, 513 So. 2d 138 (Fla.1987).
Appellant raised numerous grounds in his motion, each of which we find without merit except for his allegation of ineffective assistance of counsel based on a claim that his counsel failed to advise appellant of his right of appeal. Because we now know that a claim of ineffective assistance of trial counsel must be raised in a Rule 3.850 motion rather than in a petition for habeas corpus, State v. District Court of Appeal of Florida, First District, 569 S.2d 439 (Fla.1990), and because the record on appeal fails to demonstrate conclusively that the appellant is entitled to no relief, this cause is reversed and remanded with instructions to the trial court to hold an evidentiary hearing on appellant’s claim that his trial counsel failed to advise him of his right to appeal or in the alternative, attach that portion of the record demonstrating conclusively that appellant is entitled to no relief on this claim.
REVERSED and REMANDED with instructions.
GOSHORN, HARRIS and DIAMANTIS, JJ., concur.
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State v. Dieter Riechmann, 777 So. 2d 342 (Fla. 2000)…ms must be raised in the court in which the alleged ineffectiveness occurred. See Shere v. State, 742 So. 2d 215 (Fla.1999) (citing Knight v. State, 394 So. 2d 997 (Fla.1981); Richardson v. State, 624 So. 2d 804 (Fla. 1st DCA 1993); Turner v. State, 570 So. 2d 1114 (Fla. 5th DCA 1990)). Moreover, we have not recognized ineffective assistance of postconviction counsel claims. See Lambrix v. State, 698 So. 2d 247, 248 (Fla.1996) (citing Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989), and…
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Shere v. State, 742 So. 2d 215 (Fla. 1999)…in the court in which the alleged ineffectiveness occurred, not on the appeal of the denial of Shere’s 3.850 motion. See generally Knight v. State, 394 So. 2d 997 (Fla.1981); Richardson v. State, 624 So. 2d 804 (Fla. 1st DCA 1993); Turner v. State, 570 So. 2d 1114 (Fla. 5th DCA 1990). Moreover, we have not recognized ineffective assistance of postconviction counsel claims. See Lambrix v. State, 698 So.[2d] 247, 248 (Fla.1996) (citing Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989), and…
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Sherrill B. Turner v. State, 588 So. 2d 1042 (Fla. 5th DCA 1991)…n appeal from an order denying appellant’s motion for post-conviction relief. Appellant argues the trial court erred in finding he was not entitled to a belated appeal on the basis of ineffective assistance of counsel. We agree. In Turner v. State, 570 So. 2d 1114 (Fla. 5th DCA 1990), this court reversed the trial court’s summary denial of appellant’s motion for post-conviction relief, holding that appellant’s allegation of ineffective assist- [*1043] anee of counsel, based on a claim that his counsel failed…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kennedy v. State, 547 So. 2d 912 (Fla. 1989)
- Harich v. State, 484 So. 2d 1239 (Fla. 1986)
- Gorham v. State, 521 So. 2d 1067 (Fla. 1988)
- Mapes v. Ohio, 476 U.S. 1178 (U.S. 1986)
- Golub v. Ernst & Ernst (Whinney), 476 U.S. 1178 (U.S. 1986)
- Lemon v. State, 498 So. 2d 923 (Fla. 1986)
- Squires v. State, 513 So. 2d 138 (Fla. 1987)