ROBERT LEE LEWIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Lee Lewis appealed the denial of his rule 3.850 post-conviction motion alleging ineffective assistance of trial counsel on multiple grounds. The Florida District Court of Appeal reversed and remanded, finding that the record did not conclusively show Lewis was not entitled to relief on five specific claims of ineffective assistance.
The trial court's denial of the rule 3.850 motion was reversed and remanded because the portions of the record attached did not conclusively show that Lewis was not entitled to relief on the five claimed ineffective assistance issues. An evidentiary hearing is warranted unless the record can conclusively establish Lewis is not entitled to relief.
[1] A trial court's denial of a motion for post-conviction relief must be reversed and remanded if the attached record does not conclusively show the movant is not entitled t…
[2] Failure to object to the admission of a photo lineup may constitute ineffective assistance of counsel.
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Join FLexlaw to unlock all legal intelligence“The portions of the record attached to the trial court's order denying the motion do not conclusively show that appellant is not entitled to relief as to these issues.”
Establishes the standard requiring the record to conclusively demonstrate no entitlement to relief; failure to do so requires reversal.
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Join FLexlaw to unlock all legal intelligenceLewis was convicted at trial. His appellate record showed that trial counsel failed to object to: (1) admission of a photo lineup; (2) testimony regar…
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PER CURIAM.
Appellant brings this appeal from the trial court’s denial of his rule 3.850 motion for post-conviction relief.
We reverse and remand for an evidentiary hearing if warranted or the attachment of portions of the record conclusively showing that appellant is not entitled to relief as to the claimed ineffective assistance of trial counsel in: 1) failing to object to the admission of a photo lineup; 2) failing to object to testimony regarding prior consistent statements made by the victim; 3) failing to object to statements made during closing argument; 4) failing to object to the improper scoring of appellant’s prior convictions; and 5) failing to object to consecutive minimum mandatory sentences and consecutive life sentences. The portions of the record attached to the trial court’s order denying the motion do not conclusively show that appellant is not entitled to relief as to these issues.
Contrary to the state’s assertion, this court did not reach the merits of appellant’s argument that the photo lineup admitted during appellant’s trial was unduly suggestive in Lewis v. State, 525 So. 2d 947 (Fla. 4th DCA 1988). From this record we are unable to determine whether defense counsel’s failure to object to the admission of prior consistent statements made by the victim, and whether failure to object to improper closing arguments may have constituted ineffective assistance of counsel. As to the claimed ineffective assistance of counsel due to counsel’s failure to object to the improper scoring of appellant’s prior convictions, we note that such claims are cognizable by way of a rule 3.850 motion. See Lang v. State, 571 So. 2d 487 (Fla. 2d DCA 1990).
We reject the state’s argument that appellant’s assertions regarding his sentence were refuted by a transcript of the sentencing hearing attached to its response below. No transcript of the hearing is attached to the state’s response contained in this court’s file, nor is a transcript attached to the trial court’s order. See Young v. State, 598 So. 2d 1084 (Fla. 4th DCA 1992). Lastly, appellant’s argument regarding defense counsel’s failure to object to consecutive sentences is supported by Palmer v. State, 438 So. 2d 1 (Fla.1983) (section 775.021(4)(a) was not intended to permit stacking of mandatory minimum sentences for offenses arising from the same criminal episode).
Therefore we reverse and remand with directions to the trial court to conduct an evidentiary hearing if warranted, and to attach portions of the record conclusively showing that appellant is not entitled to relief on the aforementioned issues.
REVERSED and REMANDED.
GLICKSTEIN, C.J., and GUNTHER and POLEN, JJ., concur.
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Stone v. State, 667 So. 2d 974 (Fla. 4th DCA 1996)…evidentiary hearing or alternatively attachment of portions of the record conclusively showing that appellant was not entitled to the relief he seeks. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Lewis v. State, 613 So. 2d 115 (Fla. 4th DCA 1993). REVERSED AND REMANDED WITH DIRECTIONS. FARMER and KLEIN, JJ., concur.…
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Ivanovic v. State, 675 So. 2d 265 (Fla. 4th DCA 1996)…directions to the trial court to either conduct an evidentiary hearing or attach to its order of denial portions of the record showing that Ivanovie is not entitled to relief. See Carter v. State, 632 So. 2d 1139 (Fla. 4th DCA 1994); Lewis v. State, 613 So. 2d 115 (Fla. 4th DCA 1993). REVERSED AND REMANDED. GUNTHER, C.J., and WARNER and FARMER, JJ., concur.…
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Wilder v. State, 675 So. 2d 1041 (Fla. 4th DCA 1996)…directions to the trial court to either conduct an evidentiary hearing or append to its order those portions of the record that show Wilder is not entitled to [*1042] relief. See Carter v. State, 632 So. 2d 1139 (Fla. 4th DCA 1994); Lewis v. State, 613 So. 2d 115 (Fla. 4th DCA 1993). REVERSED AND REMANDED. GUNTHER, C.J., and POLEN and GROSS, JJ., concur.…
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
- Dean v. Publix Supermarkets, Inc., 438 So. 2d 1 (Fla. 1983)
- Young v. State, 598 So. 2d 1084 (Fla. 4th DCA 1992)
- Lang v. State, 571 So. 2d 487 (Fla. 2d DCA 1990)
- Lewis v. State, 525 So. 2d 947 (Fla. 4th DCA 1988)