DALE MALLORY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a motion for post-conviction relief is not premature even if the prisoner is serving another sentence and would not be released. The court also held that a claim of ineffective assistance of counsel based on failure to investigate alibi witnesses is facially sufficient.
Dale M. Mallory sought post-conviction relief, which the trial court denied without a hearing, finding the motion premature. Mallory claimed ineffecti…
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PER CURIAM.
Dale M. Mallory seeks review of the trial court’s denial, without a hearing, of his motion for post-conviction relief. We reverse for two reasons.
First, the trial court erred in ruling that Mallory’s 3.850 motion was premature. Fla.R.Crim.P. 3.850 states that “[a] prisoner in custody under sentence of a court established by the laws of Florida claiming the right to be released ... may move the court which entered the judgment or imposed the sentence to vacate, set aside or correct the judgment or sentence.” (Emphasis added). The state contends that since Mallory is currently serving another sentence and the granting of the 3.850 motion would not result in his release, the trial court correctly ruled that Mallory’s motion is premature. However, the Florida Supreme Court has indicated that even though a defendant cannot be released from prison due to another concurrent sentence, the court should nonetheless consider the merits of a collateral attack. See Frizzell v. State, 238 So. 2d 67 (Fla.1970). See also Wood v. State, 375 So. 2d 10 (Fla. 1st DCA 1979). Thus, the trial court erred in denying Mallory’s 3.850 motion on the basis that the motion was premature.
Second, Mallory claims he received ineffective assistance of counsel by virtue of his attorney’s failure to investigate alibi witnesses who Mallory argues could have substantiated his alibi. Because this particular allegation states a facially sufficient claim for relief, we remand this cause for further proceedings. Havard v. State, 489 So. 2d 875 (Fla. 1st DCA 1986).
In all other respects we affirm.
DOWNEY, LETTS and GUNTHER, JJ., concur.
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Alwin J. Jacobs v. State, 880 So. 2d 548 (Fla. 2004)…, including counsel’s failure to call an alibi witness, directing the trial court to either hold a hearing or “attach portions of the files and records conclusively showing that appellant is not entitled to relief on each ground”); Mallory v. State, 577 So. 2d 987, 988 (Fla. 4th DCA 1991) (remanding the case because the defendant’s motion stated a facially sufficient IAC claim regarding the failure to investigate alibi witnesses); Harrell v. State, 443 So. 2d 1080, 1080 (Fla. 2d DCA 1984) (remanding the case…
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Smith v. State, 601 So. 2d 611 (Fla. 1st DCA 1992)…hat he requested his counsel to file an appeal. As to ground one, Smith alleges that his trial counsel was ineffective for failure to investigate alibi witnesses. This allegation states a facially sufficient claim for relief. See Mallory v. State, 577 So. 2d 987, 988 (Fla. 4th DCA 1991). Therefore, the trial court was required either to attach a copy of that portion of the files and records which conclusively showed that Smith was entitled to no relief, or to proceed as described in Rule 3.850. Although the…
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Vann v. State, 605 So. 2d 920 (Fla. 1st DCA 1992)…he exception outlined above, and would not be correctly denied as untimely. Finally, we note that an allegation that counsel was ineffective in failing to investigate an alibi witness states a facially sufficient claim for relief. Mallory v. State, 577 So. 2d 987, 988 (Fla. 4th DCA1991). Therefore, on remand, the trial court shall either attach those portions of the files and records conclusively showing that Vann is entitled to no relief, or shall conduct further proceedings pursuant to Rule 3.850. Reverse…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Frizzell v. State, 238 So. 2d 67 (Fla. 1970)
- Seaman v. William Zank & the Hartford Accident & Indem. Co., 375 So. 2d 10 (Fla. 4th DCA 1979)
- Abner Lamar Havard and Joseph Carl Majewski v. State, 489 So. 2d 875 (Fla. 1st DCA 1986)