RANDY LEON GHOLSTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Randy Gholston appealed the denial of his Rule 3.850 post-conviction relief motion alleging ineffective assistance of counsel and prosecutorial use of perjured testimony. The court reversed and remanded because the trial court summarily denied the motion without an evidentiary hearing or adequate record support, and because the State could not refute allegations of perjured testimony without relying on matters outside the trial record.
The court reversed and remanded because (1) the State's inability to refute the perjured testimony allegations without relying on matters outside the trial record warranted reversal of that portion of the denial; (2) summary denial of the motion without an evidentiary hearing or record support was erroneous; and (3) further proceedings were required to address the ineffective assistance claims.
[1] A motion for post-conviction relief alleging ineffective assistance of counsel may be reversed and remanded when the State cannot refute the allegations without recourse…
[2] A trial court errs by summarily denying a motion for post-conviction relief without attaching record portions to demonstrate entitlement to no relief or holding an eviden…
Previewing 2 of 5 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“We consider that the state's admitted inability to refute the facially sufficient allegations ... without recourse to matters outside of the record, warrants reversal of the order denying that portion of the 3.850 motion.”
Establishes the standard that when the State cannot refute allegations without extra-record materials, reversal is required regarding the perjured testimony claim.
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Join FLexlaw to unlock all legal intelligenceGholston filed a post-conviction relief motion under Rule 3.850 raising two grounds for ineffective assistance of counsel and alleging the State knowi…
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PER CURIAM.
Randy Leon Gholston has filed a timely motion for post-conviction relief pursuant to Rule 3.850, alleging two grounds for finding ineffective assistance of counsel and that the State knowingly relied upon perjured testimony during the trial. The State filed a response which included documents which were not a part of the trial record in support of the contention that there was no use of perjured testimony, knowing or otherwise. ‘We consider that the state’s admitted inability to refute the facially sufficient allegations ... without recourse to matters outside of the record, warrants reversal of’ the order denying that portion of the 3.850 motion. McClain v. State, 629 So. 2d 320, 321 (Fla. 1st DCA 1993).
With regard to the two claims of ineffective assistance of counsel, first, the State asserts that the motion is incorrect in claiming that defense counsel failed to present certain evidence to the trial court regarding the victim’s sexual conduct and a previous conviction because defense counsel did try to present that evidence but was prevented from doing so by the trial court’s granting of the prosecution’s motion in limine.
Second, at least one of the witnesses whom the defendant alleges his counsel failed to subpoena would not have supported the defense, based upon an interview the State conducted with her during the investigation of this case. As for the remaining witnesses whom the defendant alleges would support his defense that the victim consented to sexual relations with him, and would have impeached the victim’s testimony that she did not know the defendant, the State admits that it has no knowledge of the substance of their testimony, and that an inquiry of defense counsel would be necessary before the State could formulate a response to that allegation.
The trial court summarily denied the motion for post-conviction relief, without attaching any portions of the record to demonstrate that Mr. Gholston was entitled to no relief and without holding an evidentiary hearing. This was an error. See Chambers v. State, 530 So. 2d 452 (Fla. 1st DCA 1988).
Accordingly, this cause is REVERSED and REMANDED for further proceedings pursuant to Rule 3.850.
ZEHMER, C.J., and BOOTH and DAVIS, JJ., concur.
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Citator
Cited By
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Mogford v. State, 883 So. 2d 340 (Fla. 4th DCA 2004)…esponse refuted appellant’s allegations of misadvise; however, the response, which was not sworn, was not part of the record. Accordingly, the court should not have relied on the response to refute appellant’s factual allegations. Gholston v. State, 648 So. 2d 192 (Fla. 1st DCA 1994); Flores v. State, 662 So. 2d 1350 (Fla. 2d DCA 1995). Reversed. WARNER, POLEN and KLEIN, JJ., concur.…
Authorities Cited
- McCLAIN v. State, 629 So. 2d 320 (Fla. 1st DCA 1993)
- Chambers v. State, 530 So. 2d 452 (Fla. 1st DCA 1988)