WILLIAM NORWOOD MERRITT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Norwood Merritt appealed the trial court's summary denial of his post-conviction relief motion under rule 3.850, claiming ineffective assistance of counsel. The Fourth District Court of Appeal affirmed the summary denial on most grounds but reversed regarding whether Merritt voluntarily waived his right to testify at trial, remanding for an evidentiary hearing on that specific issue.
The court affirmed the summary denial of post-conviction relief on all grounds except the claim regarding waiver of the right to testify. The court reversed and remanded for an evidentiary hearing limited to whether defendant voluntarily waived his right to testify or whether counsel waived it without defendant's agreement.
[1] A defendant's right to testify on his own behalf can be waived by trial counsel only with the defendant's agreement.
[2] A defendant's sworn allegations regarding the waiver of the right to testify require an evidentiary hearing unless the record conclusively refutes the claims.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“On remand, an evidentiary hearing is required only on the question of whether trial counsel was ineffective by depriving defendant of his right to testify 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.”
Establishes the limited scope of remand and the precise legal question to be addressed at the evidentiary hearing
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Join FLexlaw to unlock all legal intelligenceMerritt sought post-conviction relief alleging that his trial counsel prevented him from testifying at trial despite his insistence on doing so. Accor…
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PARIENTE, Judge.
This appeal follows from the trial court’s summary denial of defendant’s motion for post-conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. We affirm on all grounds, except for defendant’s assertion that he did not voluntarily waive his right to testify on his own behalf.
On remand, an evidentiary hearing is required only on the question of whether trial counsel was ineffective by depriving defendant of his right to testify 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 establish that defendant is not entitled to the relief sought. However, as it stands now, the conversations to which defendant refers in his 3.850 motion were presumably private attorney-client conversations not contained in the record. Furthermore, the state does not contend that there are portions of the record which will demonstrate that defendant personally waived his right to testify. Therefore, an evidentiary hearing may be the only viable alternative.
Defendant contends that he had stated his desire to testify to counsel so that he could dispel the erroneous testimony of the detective. He further contends that although counsel attempted to convince him that his testimony would do more harm than good, he still insisted on taking the stand. Despite this insistence, defendant asserts counsel nevertheless rested the case without permitting defendant to testify. Defendant’s motion may be denied if the evidence demonstrates that his claims are untrue, e.g. that he became dissatisfied with counsel’s choice only through hindsight or if, contrary to defendant’s claims, counsel did confer with defendant and reasonably concluded that defendant agreed with the decision to rest without taking the stand. Gill.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
GUNTHER and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Elton Pryor Hicks v. State, 666 So. 2d 1021 (Fla. 4th DCA 1996)…, appellant’s claims are akin to ineffective assistance of counsel eases stemming from an attorney’s failure to inform the defendant of the right to testify or where counsel ignores defendant’s express desire to testify. See, e.g., Merritt v. State, 642 So. 2d 845 (Fla. 4th DCA 1994); Wilson v. State, 647 So. 2d 185 (Fla. 1st DCA 1994); Gill v. State, 632 So. 2d 660 (Fla. 2d DCA 1994). In such cases, as here, the essential focus of the inquiry is whether trial counsel was ineffective by depriving the defendan…
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Mims v. State, 656 So. 2d 577 (Fla. 1st DCA 1995)…’ criminal record. Mims’ allegations were sufficient 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 co…
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State v. Oisorio, 657 So. 2d 4 (Fla. 3d DCA 1995)…. In Nichols v. Butler, both prongs of the Strickland test were satisfied. 953 F. 2d at 1552-53. . Cases following Gill include LaTulip v. State, 645 So. 2d 552 (Fla. 2d DCA 1994); Lynn v. State, 645 So. 2d 104 (Fla. 2d DCA 1994); Merritt v. State, 642 So. 2d 845 (Fla. 4th DCA 1994). Compare Williams v. State, 601 So. 2d 596, 599 (Fla.lst DCA 1992) (both prongs must be met) and Kenney v. State, 650 So. 2d 1136, 1136 (Fla. 1st DCA 1995) (petitioner alleged both prongs met) with Wilson v. State, 647 So. 2d 185…
Authorities Cited
- Gill v. State, 632 So. 2d 660 (Fla. 2d DCA 1994)
- Williams v. State, 601 So. 2d 596 (Fla. 1st DCA 1992)
- Kersey v. State, 636 So. 2d 789 (Fla. 2d DCA 1994)