TOMMY JONES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tommy Jones appealed the summary denial of his second postconviction motion under Florida Rule of Criminal Procedure 3.850, claiming state action and ineffective assistance of counsel prevented him from appealing the denial of his first 3.850 motion. The court reversed and remanded, finding the trial court erred by summarily denying the motion without holding an evidentiary hearing on the ineffective assistance allegations.
The court held that when a postconviction motion combines ineffective assistance allegations with state action claims, the trial court must conduct an evidentiary hearing on the ineffective assistance allegations rather than summarily denying the motion. The lack of a certificate of service prevents the presumption that prompt notice was given.
[1] A postconviction motion alleging ineffective assistance of counsel requires an evidentiary hearing.
[2] A postconviction court must conduct an evidentiary hearing on allegations of ineffective assistance of appointed counsel.
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Join FLexlaw to unlock all legal intelligence“If counsel is appointed to assist a prisoner in a postconviction proceeding, the prisoner is entitled to effective assistance.”
Establishes the fundamental right to effective assistance of counsel in postconviction proceedings
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Join FLexlaw to unlock all legal intelligenceJones filed a first 3.850 postconviction motion with appointed public defender counsel. After an evidentiary hearing, the lower court denied relief. T…
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DAUKSCH, Judge.
This is an appeal from an order summarily denying a postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant filed a previous 3.850 motion and a public defender was appointed to represent him. After an evidentiary hearing, the lower court denied relief. The present 3.850 motion claims that state action frustrated appellant’s right to appeal the order denying his prior postconviction motion. Appellant asserts the clerk of court did not serve him individually with a copy of the final order. Appellant filed a petition for writ of mandamus to compel the lower court to rule on his prior 3.850 motion, only to discover that the court had already denied relief.
Appellant also maintains appointed counsel was ineffective because he received a copy of the final order, but did not advise appellant of the ruling. Appellant further alleges that he told appointed counsel at the evidentiary hearing to take an appeal if the judge denied relief.
If counsel is appointed to assist a prisoner in a postconviction proceeding, the prisoner is entitled to effective assistance. See Madden v. State, 535 So. 2d 636 (Fla. 5th DCA 1988). Although the present posteon-viction motion combines ineffective assistance allegations with a state action claim, the trial court should have conducted an evidentiary hearing on the ineffective assistance allegations. See State v. District Court of Appeal, First District, 569 So. 2d 439 (Fla.1990).
The order denying the prior 3.850 motion directed that both appellant and the public defender’s office receive copies, but there was no certificate of service as required by Rule 3.850(g). Without a certificate of service it cannot be presumed that prompt notice of the order denying relief was given. Cf Farngiamore v. State, 633 So. 2d 118 (Fla. 5th DCA 1994); Everett v. Singletary, 603 So. 2d 117 (Fla. 4th DCA 1992).
The order denying relief is reversed and the case is remanded for an evidentiary hearing to determine (1) whether appellant timely advised counsel to take an appeal, and (2) whether appellant failed to receive prompt notice of the final order, and if so, whether this omission was attributable to counsel or his office.
REVERSED and REMANDED.
DIAMANTIS and THOMPSON, JJ., concur.
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Lynwood Williams v. State, 777 So. 2d 947 (Fla. 2000)…lleged ineffectiveness of postconviction counsel. In so holding, the Second District indicated that prior to Lam-brix it would have, consistent with the Fifth District’s approach, granted relief upon a proper evidentiary showing. See Jones v. State, 642 So. 2d 121 (Fla. 5th DCA 1994) (reversing summary denial of 3.850 motion and remanding the case for an evidentiary hearing on petitioner's claim that postconviction counsel was ineffective for failing to file timely notice of appeal as requested and failing to…
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Diaz v. State, 724 So. 2d 595 (Fla. 2d DCA 1998)…n adverse decision of the trial court on a Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Until recently Florida courts have granted relief in such circumstances upon a proper evidentia-ry basis. See e.g., Jones v. State, 642 So. 2d 121 (Fla. 5th DCA 1994); McLeod v. State, 586 So. 2d 1351 (Fla. 5th DCA 1991). Our supreme court, however, recently stated that such relief was inappropriate in the postcon-vietion setting. See Lambrix v. State, 698 So. 2d 247, 248 (Fla.1996), cert. den…
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Dubose v. State, 906 So. 2d 1230 (Fla. 2d DCA 2005)…ice. Nor is there any other record evidence that the order was served on Dubose by the clerk of court as required by rule 3.850(g). Therefore, we are unable to determine whether Dubose’s motion for rehearing was in fact untimely. See Jones v. State, 642 So. 2d 121, 122 (Fla. 5th DCA 1994) (‘Without a certificate of service it cannot be presumed that prompt notice of the order denying relief was given.”) If Dubose’s motion for rehearing was timely filed, then the time to file the appeal of his rule 3.850 moti…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Dist. Court of Appeal of Fla., 569 So. 2d 439 (Fla. 1990)
- Madden v. State, 535 So. 2d 636 (Fla. 5th DCA 1988)
- Sherrod Everett v. Singletary, 603 So. 2d 117 (Fla. 4th DCA 1992)
- Worldwide Underwriters Ins. Co. v. Kearney, 633 So. 2d 118 (Fla. 2d DCA 1994)