HALEY BASCOM PIPPIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant challenged the trial court's summary denial of his post-conviction motion alleging ineffective assistance of counsel in a capital sexual battery case. The appellate court reversed, finding that the allegations presented a prima facie case for relief and that the trial court failed to properly support its summary denial with attached documentary evidence.
The court held that Appellant's allegations presented a prima facie case for relief and that the trial court's summary denial was improper because it failed to attach the documentary evidence it claimed to have considered. The court reversed and remanded for either attachment of conclusive documents or further proceedings consistent with Rule 3.850.
[1] A trial court's summary denial of a motion for post-conviction relief must be reversed when the court fails to attach documents conclusively refuting the movant's claims.
[2] Allegations in a motion for post-conviction relief that present a prima facie case for relief require the trial court to either attach refuting documents or conduct furth…
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Join FLexlaw to unlock all legal intelligence“the allegations made in Appellant's motion present a prima facie case for relief”
Establishes that Appellant's ineffective assistance claims met the threshold for post-conviction relief consideration
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of capital sexual battery in September 1988 and sentenced to life with a 25-year minimum mandatory term. The trial court summa…
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PER CURIAM.
Appellant brings the instant belated appeal from the trial court’s summary denial of his motion for post-conviction relief. We reverse.
In September 1988, Appellant was convicted of capital sexual battery and sentenced to life with a 25-year minimum mandatory term. In March 1991, after voluntarily dismissing his appeal, Appellant filed the instant motion pursuant to rule 3.850, Florida Rules of Criminal Procedure, alleging ineffective assistance of counsel.1
Appellant’s claim of ineffective assistance of counsel arises from his allegations that trial counsel failed to object to the fact that there had not been a hearing held or specific findings of fact made on the state’s motion filed pursuant to section 92.54, Florida Statutes (requesting that the minor victims of Appellant’s crime be allowed to testify by closed-circuit television), and that counsel failed to assert Appellant’s speedy trial rights and to file a timely motion for discharge. As to the latter allegation, Appellant claims prejudice on the basis that he was originally charged with the offense of lewd and lascivious act upon a child, but that during the interim between the date of -his arrest and an August 1988 motion for extension of time filed by defense counsel, the original charge was dismissed and a new information was filed charging Appellant with capital sexual battery. Appellant maintains that had he been timely brought to trial, he would have been tried only for the offense of lewd and lascivious act upon a child instead of capital sexual battery.
In summarily denying Appellant’s motion, the trial court indicated it had attached a transcript of the testimony of one Dr. James Horde which it had considered in regard to the state’s motion for closed-circuit television, and a copy of a waiver of speedy trial signed by Appellant on June 10, 1988. Neither of these documents, however, appears in the record.
As a preliminary matter, we observe that the allegations made in Appellant’s motion present a prima facie case for relief. See, Feller v. State, 617 So. 2d 1091, 1094 n. 3 (Fla. 1st DCA 1993); Cambrick v. State, 593 So. 2d 613, 614 (Fla. 2d DCA 1992). Since the trial court failed to attach the documents refuting Appellant’s claims, we must reverse and remand “for either attachment of those portions of the files and records which conclusively show that [Appellant] is entitled to no relief, or further proceedings consistent with Rule 3.850.” Evans v. State, 588 So. 2d 1096 (Fla. 1st DCA 1991).
Furthermore, we would be remiss in failing to note that Appellant’s trial counsel, W. Paul Thompson, was reprimanded repeatedly for his incompetent handling of matters in this court as well as his failure to obey the Florida Rules of Appellate Procedure, not only in other appellate eases appearing before this court, but in particular, in the main appeal from Appellant’s judgment of conviction and sentence. See Pippin v. State, 559 So. 2d 708 (Fla. 1st DCA 1990). See also The Florida Bar: In re W. Paul Thompson, 328 So. 2d 196 (Fla.1976). For this reason, the trial judge should closely scrutinize the adequacy of his representation in the trial of this case.
The order is REVERSED and the cause is REMANDED for further proceedings consistent with this opinion.
ZEHMER, C.J., and MINER and WEBSTER, JJ., concur. . The trial court summarily denied the motion by order of November 7, 1991, but did not inform Appellant of his right to appeal within 30 days of the denial of his motion. Thereafter, on May 29, 1992, Appellant filed a motion seeking a belated appeal of the 1991 order. The trial court denied the motion without explanation, which denial was reversed by this court on appeal in an opinion remanding the cause with directions to grant Appellant a belated appeal of the 1991 order. See Pippin v. State, 616 So. 2d 1182 (Fla. 1st DCA 1993).
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Greeson v. State, 729 So. 2d 397 (Fla. 1st DCA 1998)…Appellant also claimed that trial counsel had been ineffective because he failed to file a motion to dismiss after the speedy trial time had run. The allegations supporting this claim were, likewise, facially sufficient. See, e.g., Pippin v. State, 626 So. 2d 1091 (Fla. 1st DCA 1993). The trial court did not address this claim at all in its order. The trial court’s order is reversed as to the two ineffective assistance claims addressed in this opinion and, as to those claims only, remanded for further procee…
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Brown v. State, 829 So. 2d 975 (Fla. 1st DCA 2002)…t filed a demand for speedy trial. We conclude the allegations are sufficient to state a legally sufficient claim. See e.g. Greeson v. State, 729 So. 2d 397 (Fla. 1st DCA 1998); Toliver v. State, 652 So. 2d 1291 (Fla. 1st DCA 1995); Pippin v. State, 626 So. 2d 1091 (Fla. 1st DCA 1993). Because the trial court did not refute this claim with record attachments, the trial court’s summary denial of the appellant’s ineffective assistance of counsel claim for failing to file a demand for speedy trial is reversed and…
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Waldburg v. State, 644 So. 2d 608 (Fla. 1st DCA 1994)…DCA 1981); Suto v. State, 422 So. 2d 924 (Fla. 2d DCA 1982). However, the claim that trial counsel was ineffective in failing to timely assert appellant’s speedy trial right presents a cognizable basis for post-conviction relief. Pippin v. State, 626 So. 2d 1091 (Fla. 1st DCA 1993); Gunn v. State, 378 So. 2d 105 (Fla. 5th DCA 1980). Our review of the record indicates that this was a facially valid claim that was not susceptible to summary denial. Consequently, we must reverse and remand for an evidentiary h…
Authorities Cited
- Cambrick v. State, 593 So. 2d 613 (Fla. 2d DCA 1992)
- Dunning v. Peregoy, 617 So. 2d 1091 (Fla. 5th DCA 1993)
- Haley Pippin v. State, 559 So. 2d 708 (Fla. 1st DCA 1990)
- Bascom Haley Pippin v. State, 616 So. 2d 1182 (Fla. 1st DCA 1993)
- THE Fla. BAR. In re W. Paul Thompson, 328 So. 2d 196 (Fla. 1976)
- Malone v. State, 588 So. 2d 1096 (Fla. 1st DCA 1991)