BILLY JOSEPH WELLS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Billy Joseph Wells challenged the summary denial of his Rule 3.850 post-conviction motion for ineffective assistance of counsel. The court affirmed the denial of other grounds but reversed the summary denial of the ineffective assistance of trial counsel claim, finding the trial court's order insufficient and remanding for either attachment of record evidence or an evidentiary hearing.
The trial court's summary denial of the ineffective assistance of trial counsel claim was reversed and remanded because the order was insufficient—it failed to attach record portions allegedly refuting the discovery allegation and failed to respond to claims regarding failure to suppress evidence or object to habitual offender sentencing. The denial of other grounds was affirmed.
[1] A trial court must attach portions of the record conclusively refuting a claim of ineffective assistance of counsel or hold an evidentiary hearing.
[2] Claims of ineffective assistance of appellate counsel must be raised in a petition for writ of habeas corpus, not a motion for post-conviction relief.
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Join FLexlaw to unlock all legal intelligence“the appealed order is wholly insufficient to support the trial court's summary denial of appellant's claim of ineffective assistance of trial counsel”
Establishes that the trial court's order lacked adequate reasoning and documentation to support summary denial
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Join FLexlaw to unlock all legal intelligenceWells filed a Rule 3.850 motion alleging his trial counsel failed to: file a pretrial motion for discovery, move to suppress illegally obtained eviden…
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PER CURIAM.
Billy Joseph Wells appeals an order summarily denying his rule 3.850 motion for post-conviction relief. We affirm in part, reverse in part, and remand to the trial court with directions that it either attach those portions of the record conclusively refuting appellant’s claim of ineffective assistance of trial counsel or hold an evidentiary hearing on this issue.
Appellant alleged several grounds in his motion, the first of which was his claim of ineffective assistance of trial counsel.
With regard to this ground, he specifically alleged that his trial counsel failed to file a pretrial motion for discovery, failed to move for suppression of evidence as having been obtained pursuant to an illegal search, failed to object to admission of illegally-obtained evidence, and failed to object to the court sentencing him as a habitual offender without following the proper procedures.
With regard to appellant’s first contention, the trial court stated that the record clearly refutes this allegation as it contains a demand for discovery filed by trial counsel and two answers to that demand filed by the state.
However, the court failed to attach to the order the portions of the record it relied on as conclusively refuting the allegation as required by rule 3.850.
Furthermore, the court failed to respond to appellant’s second and third contentions that trial counsel was ineffective in that he failed to move to suppress illegally-obtained evidence and to object to admission of such evidence.
With regard to the fourth contention, the court stated that appellant should have challenged his habitual offender sentence on direct appeal, but the court did not respond to appellant’s contention that trial counsel was ineffective in that he failed to object to the habitual offender sentencing procedure.
Thus, the appealed order is wholly insufficient to support the trial court’s summary denial of appellant’s claim of ineffective assistance of trial counsel.
We affirm the trial court’s summary denial of the remaining grounds alleged in appellant’s motion. A 3.850 motion for post-conviction relief is an improper vehicle for asserting a claim for ineffec tive assistance of appellate counsel. Such claim must be made directly to the appellate court in a petition for writ of habeas corpus. See State v. Broom, 523 So. 2d 639 (Fla. 2d DCA 1988).
See also, Swafford v. Dugger, 569 So. 2d 1264 (Fla.1990); Middleton v. State, 465 So. 2d 1218 (Fla.1985).
Appellant’s claim that the statement he made at the time of his arrest should not have been admitted in evidence as it violated his privilege against self-incrimination should have been raised by direct appeal. Likewise, his claim that the search and seizure effected in this case was unconstitutional should have been raised by direct appeal.
Because no useful purpose would be served by inviting the attorney general to participate in this appeal at this point of the proceedings, we decline to exercise our discretion to request such a response pursuant to Toler v. State, 493 So. 2d 489, 490 (Fla. 1st DCA 1986), and instead reverse the order as it pertains to the ineffective assistance of trial counsel ground and remand this issue to the trial court with directions that it either attach portions of the record conclusively refuting all of appellant’s allegations in support of this ground or conduct an evidentiary hearing on this issue. See Mattox v. State, 590 So. 2d 968 (Fla. 1st DCA 1991).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
SMITH, ZEHMER and WEBSTER, JJ„ concur.
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Hall v. State, 603 So. 2d 650 (Fla. 1st DCA 1992)…el’s failure to seek the appropriate procedural due process protections found in the habitual offender statute denied Hall effective assistance. In truth, neither the order nor the record attachments even address this contention. See Wells v. State, 598 So. 2d 259 (Fla. 1st DCA 1992) (remanding order denying 3.850 motion in part for the trial court to attach a portion of the record to refute, or hold an evidentiary hearing on, appellant’s contention that trial counsel was ineffective in that he failed to obje…
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Rosemond v. State, 634 So. 2d 259 (Fla. 1st DCA 1994)…BOOTH, Judge, concurring and dissenting: I concur in the majority’s finding that the first ground raised in the motion for postcon-viction relief is facially insufficient because it should have been raised on direct appeal. See Wells v. State, 598 So. 2d 259 (Fla. 1st DCA 1992). I cannot agree with the majority, however, that the trial court erred in denying the motion for postconviction relief as to the four ineffective assistance claims. My review of the motion convinces me that appellant has failed t…
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Knight v. State, 710 So. 2d 648 (Fla. 2d DCA 1998)…nction between an attack on counsel for failing to object to, and thus preserve review of, a prosecutor’s remark and the reviewability by an appellate court of the comment itself to determine whether reversal is warranted. See, e.g., Wells v. State, 598 So. 2d 259 (Fla. 1st DCA 1992) (condemning a trial court order denying a posteonvietion claim on the basis that the sentence should have been challenged on direct appeal while overlooking that the claim was based upon trial counsel’s failure to object to the s…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986)
- State v. Broom, 523 So. 2d 639 (Fla. 2d DCA 1988)
- Swafford v. Dugger, 569 So. 2d 1264 (Fla. 1990)
- Middleton v. State, 465 So. 2d 1218 (Fla. 1985)
- Mattox v. State, 590 So. 2d 968 (Fla. 1st DCA 1991)