CHARLES KERSEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Charles Kersey appeals the summary denial of his postconviction motion for ineffective assistance of trial counsel, claiming his attorney prevented him from testifying. The court holds that his claim regarding denial of the right to testify has sufficient merit to warrant an evidentiary hearing and reverses and remands on that single issue.
One of Kersey's seven grounds—his claim that trial counsel denied him the right to testify—has sufficient merit to warrant an evidentiary hearing. The trial court's summary denial reasoning was insufficient because the allegations presented were adequate to determine whether Kersey's right to testify was waived by him or by counsel without his concurrence.
[1] A defendant's claim that trial counsel was ineffective for denying the right to testify is sufficient to warrant an evidentiary hearing unless the record conclusively reb…
[2] A trial court's denial of a motion for postconviction relief based on a defendant's claim of ineffective assistance of counsel for being denied the right to testify is in…
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Join FLexlaw to unlock all legal intelligence“The allegations presented by Kersey are adequate to warrant an evidentiary hearing to determine if he waived his right to testify during trial, or whether the right was waived by his trial counsel without Kersey's concurrence.”
Establishes the standard for when an ineffective assistance claim regarding denial of the right to testify requires an evidentiary hearing rather than summary denial.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceKersey was convicted and filed a postconviction motion raising seven grounds for ineffective assistance of counsel. He claimed his trial counsel domin…
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PER CURIAM.
Charles Kersey appeals the summary denial of his motion for postconviction relief claiming ineffective assistance of trial counsel. Of the seven grounds raised, we hold that only one may have merit and reverse and remand for the trial court to consider that single issue.
Kersey claims that trial counsel was ineffective for refusing to allow him to take the witness stand in his own behalf. In his memorandum in support of his motion, Ker-sey states that “because of Defense Counsel’s domination” he did not take the stand. It is asserted that, had he been allowed to testify as requested, he would have explained statements made in his taped confession.
This court has recently examined the right of a defendant to prevail on a claim of ineffective assistance of counsel when he is denied the right to testify. See Gill v. State, 632 So. 2d 660 (Fla. 2d DCA 1994); Nixon v. State, 637 So. 2d 935 (Fla. 2d DCA 1994); Dukes v. State, 633 So. 2d 104 (Fla. 2d DCA 1994).1
In its order denying the motion for post-conviction relief, the trial court points out that Kersey does not indicate the additional facts which would have been presented had he testified. The trial court concludes that Kersey fails to demonstrate ineffective assistance of counsel because the record rebuts his claim. This reasoning is insufficient. See Williams v. State, 601 So. 2d 596 (Fla. 1st DCA 1992). The allegations presented by Kersey are adequate to warrant an evidentiary hearing to determine if he waived his right to testify during trial, or whether the right was waived by his trial counsel without Kersey’s concurrence. Id., 601 So. 2d at 599.
Therefore, we reverse and remand for an evidentiary hearing concerning Kersey’s allegations that he was denied the right to testify at trial. In the alternative, the trial court may attach those portions of the record which conclusively rebut Kersey’s claim. See Williams and Gill. In all other respects the trial court’s order denying the motion for postconviction relief is affirmed.
HALL, A.C.J., and FULMER and QUINCE, JJ., concur. . The Florida supreme court held that the right to testify is not a fundamental right. See Torres-Arboledo v. State, 524 So. 2d 403 (Fla.), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988). However, the federal courts have stated that the defendant’s right to testify is fundamental. U.S. v. Teague, 953 F. 2d 1525, 1534-35 (11th Cir.), cert. denied, - U.S. -, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992). The proper method of raising this issue is through a claim of ineffective assistance of counsel. Id.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Mims v. State, 656 So. 2d 577 (Fla. 1st DCA 1995)…t to require the trial court to attach portions of the record which refuted the claim, or to hold an evidentiary hearing. See Wilson v. State, 647 So. 2d 185 (Fla. 1st DCA 1994); Merritt v. State, 642 So. 2d 845 (Fla. 4th DCA 1994); Kersey v. State, 636 So. 2d 789 (Fla. 2d DCA 1994); Dukes v. State, 633 So. 2d 104 (Fla. 2d DCA 1994); Gill v. State, 632 So. 2d 660 (Fla. 2d DCA 1994); Williams v. State, 601 So. 2d 596 (Fla. 1st DCA 1992). Herein, the trial court attached a copy of Mims’ criminal record as concl…
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Merritt v. State, 642 So. 2d 845 (Fla. 4th DCA 1994)…on his own behalf at trial. The focus of the inquiry, based on defendant’s sworn allegations, should be whether defendant waived his right to testify, or whether that right was waived by his trial counsel without his agreement. See Kersey v. State, 636 So. 2d 789 (Fla. 2d DCA 1994); Gill v. State, 632 So. 2d 660 (Fla. 2d DCA 1994); Williams v. State, 601 So. 2d 596 (Fla. 1st DCA 1992). As an alternative to an evidentiary hearing, the trial court may attach portions of the record if they conclusively establi…
Authorities Cited
- Torres-Arboledo v. State, 524 So. 2d 403 (Fla. 1988)
- United States v. Teague, 953 F.2d 1525 (11th Cir. 1992)
- Ohio Power Co. v. Thomas, 488 U.S. 901 (U.S. 1988)
- Gen. Elec. Co. v. United States, 488 U.S. 901 (U.S. 1988)
- Gill v. State, 632 So. 2d 660 (Fla. 2d DCA 1994)
- Williams v. State, 601 So. 2d 596 (Fla. 1st DCA 1992)
- Dennis v. The Honorable Leonard Rivkind, 633 So. 2d 104 (Fla. 3d DCA 1994)
- Dukes v. State, 633 So. 2d 104 (Fla. 2d DCA 1994)
- Nixon v. State, 637 So. 2d 935 (Fla. 2d DCA 1994)