MACK LEONARD JENKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jenkins appealed a trial court's summary denial of his Rule 3.850 motion for post-conviction relief, which raised four grounds for relief. The appellate court affirmed the denial of three grounds that were more appropriate for direct appeal but reversed as to two ineffective assistance of counsel claims that required an evidentiary hearing.
The court affirmed summary denial of the first three grounds as issues properly raised on direct appeal, not collateral review. However, the court reversed the summary denial of two ineffective assistance claims—failure to consider voluntary intoxication defense and failure to object to suggestive identification procedures—because these allegations were sufficient to require an evidentiary hearing or record refutation.
[1] Issues that could have been raised on direct appeal are generally not cognizable in a collateral post-conviction relief proceeding.
[2] Allegations of ineffective assistance of counsel based on counsel's failure to consider a voluntary intoxication defense, when supported by evidence of the defendant's su…
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Join FLexlaw to unlock all legal intelligence“we conclude that two were not properly susceptible to summary denial.”
Establishes that some of the ineffective assistance claims could not be summarily denied and required further proceedings.
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Join FLexlaw to unlock all legal intelligenceJenkins was convicted of a specific intent crime. He claimed he had a history of alcoholism and cocaine addiction and was under the influence of both …
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PER CURIAM.
Appellant seeks review of an order which summarily denied his motion for post-eonviction relief, filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm in part, and reverse in part.
Appellant finds fault with the trial court’s summary denial of his request seeking relief upon the following grounds: (1) suppression by the state attorney of evidence which might have been used to impeach one of the state’s witnesses; (2) failure to reinstruct the jury regarding reasonable doubt; (3) insufficiency of the evidence to establish appellant’s guilt beyond a reasonable doubt; and (4) ineffective assistance of trial counsel.
We agree with the trial court that the first three grounds all involve issues which could have been raised on direct appeal and, therefore, may not be presented in a collateral proceeding. E.g., Muhammad v. State, 603 So. 2d 488 (Fla.1992). Accordingly, we affirm the trial court’s summary denial of appellant’s motion for post-conviction relief to the extent that it was based upon those three grounds.
Appellant asserted in the trial court that his counsel was ineffective for a number of reasons. We agree with the trial court’s decision as to the majority of the asserted reasons. However, we conclude that two were not properly susceptible to summary denial.
Appellant asserted that trial counsel was ineffective because he failed to consider a voluntary intoxication defense despite knowledge that appellant had a history of alcoholism and cocaine addiction; and evidence that appellant was under the influence of both drugs at the time of the offense, which is a specific intent crime. Such allegations are sufficient to require either an evidentiary hearing or attachment of portions of the record refuting them. E.g., McCoy v. State, 598 So. 2d 169 (Fla. 1st DCA 1992).
Appellant also asserted that trial counsel was ineffective because he failed to object to impermissibly suggestive out-of-court and in-court identification procedures. Such allegations are, likewise, sufficient to require either an evidentiary hearing or attachment of portions of the record refuting them. See, e.g., McDaniel v. State, 523 So. 2d 1225 (Fla. 2d DCA 1988).
We reverse the trial court’s order to the extent that it summarily denied appellant’s motion seeking relief for ineffective assistance of counsel based upon alleged failure to consider a voluntary intoxication defense and failure to object to impermissibly suggestive out-of-court and in-court identification procedures. On remand, the trial court is directed either to conduct an evidentiary hearing addressed to such allegations, or to attach to its order portions of the record refuting them. In all other respects, the trial court’s order is affirmed.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.
MINER, WEBSTER and MICKLE, JJ., concur.
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E.W. v. State, 873 So. 2d 485 (Fla. 1st DCA 2004)…e business” which would entitle one to enter or remain upon school property refers to any purpose for being there which is connected with the operation of the school. See A.C. v. State, 538 So. 2d 136, 137 (Fla. 3d DCA 1989). See also J.H. v. State, 625 So. 2d 883 (Fla. 1st DCA 1993). In the instant case, appellant, as an enrolled student at Second Chance School, clearly had legitimate business on school property, and therefore could not be found guilty of trespass. Viewing the evidence in the light most fav…
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McKINNEY v. State, 722 So. 2d 933 (Fla. 1st DCA 1998)…DCA 1992), or told his attorney that he had a history of substance abuse that, together with record evidence of his intoxication at the time of the offense, should have alerted his counsel to the possibility of such a defense. See Jenkins v. State, 625 So. 2d 883, 884-85 (Fla. 1st DCA 1993); Reed v. State, 611 So. 2d 48, 49 (Fla. 1st DCA 1992); McCoy v. State, 598 So. 2d 169, 170-71 (Fla. 1st DCA 1992); [*935] Price v. State, 487 So. 2d 34, 34-35 (Fla. 1st DCA 1986). Appellant’s allegations meet the requirem…
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Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McCOY v. State, 598 So. 2d 169 (Fla. 1st DCA 1992)
- Askari Abdullah Muhammad v. State, 603 So. 2d 488 (Fla. 1992)
- McDANIEL v. State, 523 So. 2d 1225 (Fla. 2d DCA 1988)