BERNARD LEE JONES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Bernard Lee Jones appealed the trial court's summary denial of a rule 3.850 post-conviction relief motion challenging his nolo contendere plea to burglary with assault and grand theft. The appellate court affirmed the denial, finding that the sentencing transcript clearly refuted all of Jones's allegations regarding involuntariness of his plea, ineffective assistance of counsel, and denial of a presentence investigation.
The trial court properly summarily denied the rule 3.850 motion because the sentencing transcript clearly refuted all of Jones's allegations. Jones failed to allege a factual basis for post-conviction relief that was not conclusively rebutted by the record and failed to demonstrate that counsel's performance was so deficient that the outcome would have been different.
[1] A defendant's claim that a plea was involuntary due to unawareness of habitual offender status is refuted if the record shows the defendant and counsel were aware of the…
[2] A defendant's assertion of ineffective assistance of counsel is refuted if the record demonstrates the defendant expressed satisfaction with counsel and had ample opportu…
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Join FLexlaw to unlock all legal intelligence“The transcript makes it clear that defendant and his counsel were aware that he would be sentenced as a habitual offender.”
Establishes that Jones's claim of involuntary plea based on lack of awareness of habitual offender status was refuted by the record.
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Join FLexlaw to unlock all legal intelligenceJones pleaded nolo contendere to burglary with assault and third degree grand theft on January 11, 1994. On April 14, 1994, he filed a rule 3.850 moti…
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BARKDULL, Judge.
Appellant seeks review of the trial court’s summary denial of a rule 3.850 motion.
Defendant plead nolo contendere to burglary with an assault and third degree grand theft on January 11,1994. On April 14,1994, defendant filed this rule 3.850 motion alleging that his plea was involuntary in that he was not aware that the state would seek habitual offender status; that his counsel was ineffective in that he failed to consult and counsel him or allow him to participate in the preparation of his case; and that he was denied his right to a presentence investigation prior to being sentenced.
The transcript makes it clear that defendant and his counsel were aware that he would be sentenced as a habitual offender. At sentencing, defendant was the first to address the issue when he specifically asked the court to explain how habitual offender status applied to him. That defendant disagrees with the applicability of the habitual offender status as applied to him is not of consequence, the transcript clearly shows that he was aware that the state would seek habitual offender status.
The transcript also demonstrates that defendant was not dissatisfied with his counsel and that he had been counseled and advised by his lawyer. Defendant stated on the record that his lawyer was a “fine lawyer,” that he was satisfied with his representation and that he had had the opportunity to discuss with his lawyer his ease and the plea agreement at length.
Finally, the transcript demonstrates that defendant knowingly and intelligently waived his right to a presentence investigation. The trial court specifically asked defendant whether he would waive his right to a PSI. Prior to waiving the PSI defendant asked the court to explain to him the purpose of a PSI and whether or not waiving the PSI would affect his sentence. Upon explanation, defendant stated that he would waive his right to a PSI. Thus the transcript demonstrates that defendant has waived his right to a presentence investigation.
The trial court did not err in summarily denying defendant’s rule 3.850 motion where the record clearly refutes the allegations made. Defendant fails to allege a factual basis for post conviction relief because the sentencing transcript clearly rebuts defendant’s allegations. To obtain relief defendant must allege facts which are not conclusively rebutted by the record, and, he must demonstrate that his counsel’s performance was so deficient that but for the deficiency the outcome would have been different. See and compare Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Kennedy v. State, 547 So. 2d 912 (Fla.1989); Agan v. State, 503 So. 2d 1254 (Fla.1987); O’Callaghan v. State, 461 So. 2d 1354 (Fla.1984). This defendant has failed to do.
Accordingly, the order of the trial court is affirmed.
Affirmed.
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Ortiz v. State, 9 So. 3d 774 (Fla. 4th DCA 2009)…ndant can “knowingly waive” the right to a PSI, but we found no waiver present and thus reversed for resentencing. However, Bardwell does not involve an attorney waiver of the PSI, as is present in this case. Furthermore, Likely and Jones v. State, 643 So. 2d 1150 (Fla. 3d DCA 1994), involved appeals from orders denying post-conviction relief. In each case the court held that the motion alleging the trial court’s failure to obtain a PSI prior to sentencing could be summarily denied, because each defendant per…
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Bertram P. OCE v. State, 891 So. 2d 1195 (Fla. 3d DCA 2005)…t was involuntary. We affirm the denial of his motion without an evidentiary hearing where the record conclusively refutes the appellant’s claims that his plea was involuntary. See Heggan v. State, 745 So. 2d 1066 (Fla. 3d DCA 1999); Jones v. State, 643 So. 2d 1150 (Fla. 3d DCA 1994); Bell v. State, 637 So. 2d 941 (Fla. 2d DCA 1994).…
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Hardy v. State, 678 So. 2d 14 (Fla. 3d DCA 1996)…PER CURIAM. Affirmed. Tucker v. State, 559 So. 2d 218 (Fla.l990)(Defendant may orally waive right to jury trial if waiver is reflected on the record.); Jones v. State, 643 So. 2d 1150 (Fla. 3d DCA 1994)(Defendant not afforded relief where transcript reflected knowing, intelligent waiver of right to PSL).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Kennedy v. State, 547 So. 2d 912 (Fla. 1989)
- O'Callaghan v. State, 461 So. 2d 1354 (Fla. 1984)
- Agan v. State, 503 So. 2d 1254 (Fla. 1987)