ROBERT LEE SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Lee Smith appealed a trial court's summary denial of his Rule 3.850 post-conviction motion alleging ineffective assistance of trial counsel. The appellate court affirmed the denial regarding the failure-to-appeal claim but reversed and remanded regarding the failure-to-investigate-alibi-witnesses claim, finding the trial court failed to properly attach supporting records.
The court affirmed the denial of the failure-to-appeal claim because Smith did not allege he had requested counsel to file an appeal, but reversed the denial of the failure-to-investigate-alibi-witnesses claim and remanded because the trial court failed to attach the pertinent files and records required under Rule 3.850. The court allowed Smith to file a new sworn motion if he could allege that a request for appeal was timely made and dishonored.
[1] A motion for post-conviction relief alleging ineffective assistance of counsel for failure to investigate alibi witnesses states a facially sufficient claim.
[2] A trial court must either attach portions of the record conclusively refuting a post-conviction claim or conduct further proceedings.
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Join FLexlaw to unlock all legal intelligence“This allegation states a facially sufficient claim for relief. See Mallory v. State, 577 So.2d 987, 988 (Fla. 4th DCA 1991).”
Establishes that the failure-to-investigate-alibi-witnesses claim is sufficient to survive summary denial and requires proper record attachment or further proceedings.
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Join FLexlaw to unlock all legal intelligenceSmith was convicted in March 1990 of battery on a law enforcement officer and resisting arrest with violence, and sentenced to five years incarceratio…
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PER CURIAM.
Robert Lee Smith has appealed an order of the trial court summarily denying his motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm in part, reverse in part, and remand.
In March 1990, Smith was convicted of battery on a law enforcement officer and resisting arrest with violence, and was sentenced to five years incarceration. No appeal was filed. In May 1991, Smith filed the instant motion alleging ineffective assistance of trial counsel in that counsel: 1) failed to call alibi witnesses of which he was aware, and 2) failed to file an appeal. The trial court denied the motion, finding that the first ground was refuted by the record (the order purports to include pertinent portions of that record, but does not). As to the second ground, the court found the motion legally insufficient because Smith did not allege that 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 order herein purports to attach pertinent portions of the files and records, it does not. Therefore, we reverse the order as to this ground, and remand either for attachment of pertinent portions of the files and records, or for further proceedings.
As to the allegation that trial counsel was ineffective for failing to file Smith’s appeal, we agree that such an allegation is legally insufficient unless the movant also avers that counsel was requested to file an appeal. See Harris v. State, 596 So. 2d 500 (Fla. 1st DCA 1992). Therefore, we affirm the order of the trial court as to this allegation. However, as in Harris, we affirm without prejudice to the filing by Smith of a sworn motion pursuant to Rule 3.850 which alleges that a request for appeal was timely made and dishonored by counsel.
Affirmed in part, reversed in part, and remanded with directions.
JOANOS, C.J., and ERVIN and MINER, JJ., concur.
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Highsmith v. State, 617 So. 2d 825 (Fla. 1st DCA 1993)…licit uncertainty concerning the witnesses’ willingness to testify at trial, case law on point has required only that the defendant allege the witness was available to testify — not that the named witness would testify willingly. See Smith v. State, 601 So. 2d 611 (Fla. 1st DCA 1992); Williamson v. State, 559 So. 2d 723 (Fla. 1st DCA 1990); Robinson v. State, 516 So. 2d 20 (Fla. 1st DCA 1987). In Sorgman and Majewski, this court reviewed allegations which are the functional equivalent of the allegations in t…
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Love v. State, 623 So. 2d 1221 (Fla. 1st DCA 1993)…at he made a timely request for an appeal which his counsel failed to honor states a facially sufficient basis for relief pursuant to rule 3.850. State v. District Court of Appeal; Green v. State, 614 So. 2d 1198 (Fla. 1st DCA 1993); Smith v. State, 601 So. 2d 611 (Fla. 1st DCA 1992); Jackson v. State, 599 So. 2d 266 (Fla. 1st DCA 1992). And, as the trial court [*1223] found, a motion alleging frustration of a right to appeal by actions of trial counsel is not subject to the two-year limitation period, where…
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Hubbard v. State, 631 So. 2d 352 (Fla. 5th DCA 1994)…assistance of trial counsel in his failure to [*353] timely file a notice of appeal. Nowhere does defendant under oath allege that trial counsel was (timely) instructed to file the appeal. The ground as such is legally insufficient. Smith v. State, 601 So. 2d 611 (Fla. 1st DCA 1992) and Harris v. State, 596 So. 2d 500 (Fla. 1st DCA 1992); Williams v. State, 596 So. 2d 501 (Fla. 1st DCA 1992); Smith v. State, 592 So. 2d 1208 (Fla. 2d DCA 1992); and Hickman v. State, 581 So. 2d 942 (Fla. 2d DCA 1991). . The c…
Authorities Cited
- Mallory v. State, 577 So. 2d 987 (Fla. 4th DCA 1991)
- Harris v. State, 596 So. 2d 500 (Fla. 1st DCA 1992)