KENNETH MURPHY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that allegations of ineffective assistance of counsel must be accepted as true unless conclusively rebutted by the record, and a tactical decision defense is generally inappropriate without an evidentiary hearing.
[1] Allegations in a motion for post-conviction relief must be accepted as true unless conclusively rebutted by the record when an evidentiary hearing has not been held.
[2] A finding that defense counsel's action or inaction was tactical is generally inappropriate without an evidentiary hearing when faced with a claim of ineffective assistan…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of selling cocaine and sought post-conviction relief, alleging ineffective assistance of counsel for failing to object to a co…
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PER CURIAM.
Appellant, Kenneth Murphy, appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant raises numerous grounds in his motion. With the exception of one ineffective assistance of counsel claim discussed below, we find that the motion was appropriate for summary denial. We affirm in part and reverse in part.
Appellant was convicted of the sale and delivery of cocaine. Appellant asserts that defense counsel was ineffective by failing to object to counsel for a co-defendant’s questioning of witnesses in which counsel constantly referred to appellant as “the drug seller.” Where an evidentiary hearing has not been held, a movant’s allegations in a motion for post-conviction relief must be accepted as true except to the extent that the allegations are conclusively rebutted by the record. Harich v. State, 484 So. 2d 1239 (Fla.1986). If true, appellant’s claim could constitute ineffective assistance of counsel.
The trial judge found that even if the court accepted appellant’s allegations concerning ineffective assistance of counsel as true, appellant may not prevail because appellant’s allegations involved matters within the judgment and strategy of defense counsel.
The trial court cites Gonzalez v. State, 579 So. 2d 145 (Fla. 3d DCA 1991).
Gonzalez involved a trial court’s ruling after an evidentiary hearing on allegations of ineffective assistance of counsel. Although defense counsel is entitled to broad discretion regarding trial strategy, when the court is confronted with a claim of ineffective assistance of counsel, a finding that some action or inaction by defense counsel was tactical is generally inappropriate without an evidentiary hearing. Thomas v. State, 634 So. 2d 1157 (Fla. 1st DCA 1994); Gordon v. State, 608 So. 2d 925 (Fla. 3d DCA 1992); Davis v. State, 608 So. 2d 540 (Fla. 2d DCA 1992); Harley v. State, 594 So. 2d 352 (Fla. 2d DCA 1992); Dauer v. State, 570 So. 2d 314 (Fla. 2d DCA 1990).
We therefore reverse for an evidentiary hearing on this claim or for attachment of portions of the record demonstrating that appellant is not entitled to relief.
We affirm as to all other grounds rejected in the trial court’s order. AFFIRMED in part, REVERSED in part, and REMANDED with instructions.
ERVIN, MICKLE and DAVIS, JJ., concur.
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Guisasola v. State, 667 So. 2d 248 (Fla. 1st DCA 1995)…te, 484 So. 2d 1239 (Fla.1986); and Buford v. State, 492 So. 2d 355 (Fla.1986). However, a trial court’s finding that some action or inaction by defense counsel was tactical is generally inappropriate without an evidentiary hearing. Murphy v. State, 638 So. 2d 975 (Fla. 1st DCA 1994); Thomas v. State, 634 So. 2d 1157 (Fla. 1st DCA 1994). Herein, absent an adequate rec ord, and without the benefit of an evidentiary hearing, we are in no position to affirm whether the omission of such a defense was a strategic…
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Crumbley v. State, 661 So. 2d 383 (Fla. 1st DCA 1995)…the allegation of failing to properly preserve an issue which if well founded would result in [*385] a reversal has been held to constitute a preliminary basis for relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. Murphy v. State, 638 So. 2d 975 (Fla. 1st DCA 1994). The order of the trial court summarily denying the petition is reversed. WEBSTER and VAN NORTWICK, JJ., concur.…
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Hamilton v. State, 860 So. 2d 1028 (Fla. 5th DCA 2003)…that, “[tjhis court on inquiry into effectiveness of counsel, whether tactical or strategic, will not review specific discretionary or judgmental acts of trial counsel in a criminal prosecution.” We disagree with this reasoning. In Murphy v. State, 638 So. 2d 975 (Fla. 1st DCA 1994), the trial court summarily denied the defendant’s allegations concerning ineffective assistance and stated that even if the court found the defendant’s allegations to be true, the defendant could not prevail because defendant’s a…
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
- Harich v. State, 484 So. 2d 1239 (Fla. 1986)
- Dauer v. State, 570 So. 2d 314 (Fla. 2d DCA 1990)
- Gonzalez v. State, 579 So. 2d 145 (Fla. 3d DCA 1991)
- Harley v. State, 594 So. 2d 352 (Fla. 2d DCA 1992)
- Davis v. State, 608 So. 2d 540 (Fla. 2d DCA 1992)
- Shoffner v. Shoffner, 608 So. 2d 925 (Fla. 3d DCA 1992)
- Gordon v. State, 608 So. 2d 925 (Fla. 3d DCA 1992)
- Henderson v. State, 634 So. 2d 1157 (Fla. 1st DCA 1994)
- Thomas v. State, 634 So. 2d 1157 (Fla. 1st DCA 1994)
- Murphy v. State, 616 So. 2d 1100 (Fla. 1st DCA 1993)