JOSEPH MCCALLUM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant McCallum challenges dismissal of his post-conviction relief motion alleging ineffective assistance of counsel and defects in his plea agreement. The appellate court found the trial court's summary dismissal improper because the record did not adequately address appellant's claims regarding competency hearing requests, drug influence, duress, and consolidation of prosecutions.
The trial court's summary dismissal was improper. The attached record portions did not adequately refute appellant's claims and did not support the court's waiver conclusions, particularly regarding statutory requirements for consolidation waiver.
[1] A trial court order summarily dismissing a motion for post-conviction relief must be supported by adequate record attachments that refute the claims raised in the motion.
[2] A written plea agreement does not automatically refute claims that a defendant was under the influence of prescribed psychotropic drugs or entered a plea under duress and…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“They do not refute the claim that the defense requested a competency hearing pursuant to the Florida Rules of Criminal Procedure, that appellant was on prescribed psychotropic drugs at the time of his plea and understood the court to be inquiring as to use of illegal drugs only, or that his plea was the result of coercion or undue persuasion.”
Establishes that the attached record was insufficient to address appellant's substantive claims regarding competency, drug influence, and voluntariness of plea.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMcCallum entered a nolo contendere plea to second degree murder, armed burglary, and grand theft in Indian River County and armed burglary in St. Luci…
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PER CURIAM.
Appellant challenges a trial court order summarily dismissing his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The motion followed a sentence of sixty years in prison, based on appellant’s plea of nolo contendere to second degree murder, armed burglary, and grand theft in one prosecution in Indian River County, and to armed burglary in St. Lucie County. The two prosecutions were consolidated as part of the plea agreement.
Appellant’s motion contained arguments that the trial court failed to conduct a proper hearing on his mental competency when requested by defense counsel, that he was under the influence of prescribed psychotropic drugs when he entered his plea, that he entered his plea under duress and coercion, and finally that the trial court improperly consolidated the two prosecutions. The trial court dismissed appellant’s motion, citing as grounds that appellant did not request a competency hearing, that he signed a written plea agreement, and that he agreed to consolidation of the two prosecutions. The order cited as attached a copy of the plea agreement, a transcript of the change of plea colloquy and the order of consolidation.
We have reviewed these portions of the record and find that they do not adequately refute appellant’s claims. They do not refute the claim that the defense requested a competency hearing pursuant to the Florida Rules of Criminal Procedure, that appellant was on prescribed psychotropic drugs at the time of his plea and understood the court to be inquiring as to use of illegal drugs only, or that his plea was the result of coercion or undue persuasion. Furthermore, the record attached does not adequately support the trial court’s conclusion of waiver on the consolidation issue, particularly because it does not show the statutory requirements for waiver were indeed met. Section 910.035, Fla.Stat. (1989). We therefore return the entire cause to the trial court for attachment of further portions of the record refuting appellant’s claims or an evidentiary hearing. Gentry v. State, 464 So. 2d 659 (Fla. 4th DCA 1985).
REVERSE AND REMAND.
LETTS, POLEN and FARMER, JJ., concur.
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Rivera v. State, 746 So. 2d 542 (Fla. 2d DCA 1999)…. See Reutter, 590 So. 2d at 1133; Campbell, 488 So. 2d at 592; Gunn, 379 So. 2d at 432. Similarly, the existence of a signed, written plea agreement, by itself, is insufficient to refute a defendant’s claim [*543] for relief. See McCallum v. State, 591 So. 2d 318, 319 (Fla. 4th DCA 1991). Instead, where the record does not conclusively refute the allegations, an eviden-tiary hearing is required. See Gunn, 379 So. 2d at 432 (holding summary denial of a motion for postconviction relief can only be sustained…
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COX v. State, 974 So. 2d 474 (Fla. 2d DCA 2008)…nding alone, is insufficient to refute a defendant’s claim that he misunderstood the terms of the plea agreement or that no other promises were made to induce the plea. Cf. Hen Lin Lu v. State, 683 So. 2d 1110 (Fla. 4th DCA 1996); McCallum v. State, 591 So. 2d 318, 319 (Fla. 4th DCA 1991). Therefore, [*476] we reverse the summary denial of this claim and remand for the court either to attach record excerpts conclusively refuting this claim or to conduct an evidentiary hearing. Claims two and four of Cox’s mo…
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- Fla. Atl. Assocs. v. Belmont, 464 So. 2d 659 (Fla. 4th DCA 1985)