CLARENCE EDWARD DUKES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a claim of attorney interference with the right to testify can be raised via Florida Rule of Criminal Procedure 3.850, and that the circuit court's reliance on Cutter v. State was misplaced.
The appellant alleged his trial attorney refused to allow him to testify and threatened to walk out. The circuit court summarily denied this claim, fi…
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PER CURIAM.
Clarence Edward Dukes appeals the summary denial of his motion for postconviction relief. Of the numerous grounds presented in the motion, all but one are clearly -without merit and the circuit court properly denied relief as to those. We remand for further proceedings regarding one claim of ineffective assistance of counsel.
Dukes alleges that his trial attorney “refused” to allow him to take the stand and threatened to walk out if Dukes insisted upon testifying. The circuit court’s order finds that Dukes “could have brought his concerns to the attention of the court.” Although the court’s order does not cite Cutter v. State, 460 So. 2d 538 (Fla. 2d DCA 1984), the court may have relied on that decision in making this determination. However, as we recently explained in Gill v. State, 632 So. 2d 660 (Fla. 2d DCA 1994), Cutter was not intended to foreclose the possibility of raising via Florida Rule of Criminal Procedure 3.850 the issue of an attorney’s interference with the right to testify. See also United States v. Teague, 953 F. 2d 1525 (11th Cir.1992), cert. denied, — U.S. —, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992).
We remand this case for further consideration of this one issue in light of our decision in Gill. After remand the circuit court may again deny the motion if the files and records conclusively demonstrate that Dukes did not receive ineffective assistance of counsel. Otherwise an evidentiary hearing may be necessary.
Affirmed in part, reversed in part, and remanded -with instructions.
FRANK, C.J., and DANAHY and LAZZARA, JJ., concur.
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G.S. v. T.B., 985 So. 2d 978 (Fla. 2008)…best interests of the child— the object of the proceeding.”). In reviewing a trial court’s finding as to whether an adoption serves the best interests of the child, an appellate court is governed by the abuse-of-discretion standard. See In re K.C., 633 So. 2d 104, 104 (Fla. 2d DCA 1994) (applying the abuse-of-discretion standard in determining whether parental rights should be terminated for subsequent adoption); In re L.N.S., 546 So. 2d 808, 808 (Fla. 4th DCA 1989) (holding that the trial court did not abus…
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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
- United States v. Teague, 953 F.2d 1525 (11th Cir. 1992)
- Gill v. State, 632 So. 2d 660 (Fla. 2d DCA 1994)
- Cutter v. State, 460 So. 2d 538 (Fla. 2d DCA 1984)