JERRY DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jerry Davis appealed the summary denial of his rule 3.850 motion claiming ineffective assistance of counsel. The trial court denied the motion without an evidentiary hearing, but the appellate court reversed, holding that a summary denial cannot rest on conclusory arguments when the record does not conclusively demonstrate defendant is not entitled to relief.
A trial court cannot summarily deny a rule 3.850 motion without an evidentiary hearing unless the record conclusively demonstrates that the defendant is not entitled to relief. Conclusory state arguments that failures to object were reasonable strategic decisions cannot substitute for an evidentiary hearing.
[1] A trial counsel's failure to object to reversible error, while waiving the point on direct appeal, does not bar a subsequent, collateral challenge based on a claim of ine…
[2] A summary denial of a motion for post-conviction relief must be reversed unless the record conclusively demonstrates that the defendant is not entitled to relief.
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Join FLexlaw to unlock all legal intelligence“trial counsel's failure to object to reversible error, while waiving the point on direct appeal, does not bar a subsequent, collateral challenge based on a claim of ineffective assistance of counsel”
Establishes that failure to preserve issues through trial objections does not preclude collateral attack on ineffective assistance grounds
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Join FLexlaw to unlock all legal intelligenceDavis was convicted after trial. On direct appeal, this court found that two issues (prosecutor's alleged comment on defendant's silence and admissibi…
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[*1250] PARIENTE, Judge.
Defendant timely appeals a summary denial of his rule 3.850 motion without evidentiary hearing. Defendant asserted ineffective assistance of counsel as a result of the failure of his trial counsel to preserve two issues for appeal: the prosecutor’s alleged comment on defendant’s silence and the admissibility of the victims’ out-of-court identification. Both of these issues were raised on direct appeal, but this court found that neither issue had been preserved for appeal. Davis v. State, 579 So. 2d 418 (Fla. 4th DCA 1991).
The state’s response to defendant’s motion before the trial court was that: 1) the issue had been decided on appeal; 2) the issues raised were inappropriate subjects for a rule 3.850 motion; and 3) no objection was made at trial. The trial court adopted the state’s response, and its attachment — the answer brief filed on direct appeal.
This court has held that trial counsel’s failure to object to reversible error, while waiving the point on direct appeal, does not bar a subsequent, collateral challenge based on a claim of ineffective assistance of counsel. Vento v. State, 621 So. 2d 493, 495 (Fla. 4th DCA 1993). Our decision in the direct appeal in this case makes clear that the merits of the points raised were not addressed because of the failure to object at trial. Davis, 579 So. 2d at 418.
Unless the record supplied conclusively demonstrates that defendant is not entitled to relief, we are compelled to reverse the trial court’s order of summary denial in accordance with rule 9.140(g) of the Florida Rules of Appellate Procedure. The state’s answer brief, filed as an attachment to the trial court’s order summarily denying relief, is not a proper “record” to support affir-mance of a summary denial under rule 9.140(g). Compare Kaufman v. Lassiter, 616 So. 2d 491, 493 (Fla. 4th DCA), review denied, 624 So. 2d 267 (Fla.1993) (party is estopped to argue a position contrary to that taken in a prior appeal).
The state’s eonelusory arguments that trial counsel’s failures to object were reasonable strategic decisions cannot support affirmance of a summary denial and substitute for an evidentiary hearing. While the failure to object based on reasonable trial strategy may refute a claim of ineffective assistance of counsel, “without an adequate record, we are in no position to make such a fact-based determination as a plethora of recent cases attests.” Williams v. State, 642 So. 2d 67, 69 (Fla. 1st DCA 1994); see also Chambers v. State, 613 So. 2d 118 (Fla. 2d DCA 1993).
Accordingly the trial court’s summary denial of defendant’s motion for post-conviction relief is reversed and remanded for either an evidentiary hearing or for attachment of record excerpts which are sufficient to conclusively disprove defendant’s claims of ineffective assistance of counsel.
GUNTHER and STONE, JJ., concur.
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Jackson v. State, 711 So. 2d 1371 (Fla. 4th DCA 1998)…t is clear that any error involved in those comments was not preserved for appeal by counsel’s failure to object; such failure may be sufficient to constitute the ineffective assistance of counsel pursuant to a rule 3.850 motion. See Davis v. State, 648 So. 2d 1249, 1250 (Fla. 4th DCA 1995); Overton v. State, 531 So. 2d 1382,1387 (Fla. 1st DCA 1988); Martin v. State, 501 So. 2d 1313 (Fla. 1st DCA 1986). As to the foregoing grounds for relief, the record before this court does not conclusively demonstrate that…
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Nicolo J. Gian-Grasso v. State, 899 So. 2d 392 (Fla. 4th DCA 2005)…old that the trial court erred in summarily denying this claim because the claim is sufficient and not refuted by the record. Nothing in the record indicates that counsel’s acquiescence was part of an “all-or-nothing” trial strategy. Davis v. State, 648 So. 2d 1249 (Fla. 4th DCA 1995). A defendant is entitled to have a jury consider convicting of the two separate component offenses of a compound offense such as burglary with a battery. As explained in Bledsoe v. State, 764 So. 2d 927, 929 (Fla. 2d DCA 2000),…
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Anthony v. State, 660 So. 2d 374 (Fla. 4th DCA 1995)…da Rule of Appellate Procedure 9.140(g) specifically provides that “unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing.” See Davis v. State, 648 So. 2d 1249 (Fla. 4th DCA 1995). While defense counsel is entitled to broad discretion regarding trial strategy, where the trial court is confronted with a claim of ineffective assistance of counsel, a finding that some action or inaction by defense counsel wa…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wright v. State, 579 So. 2d 418 (Fla. 4th DCA 1991)
- Williams v. State, 642 So. 2d 67 (Fla. 1st DCA 1994)
- Vento v. State, 621 So. 2d 493 (Fla. 4th DCA 1993)
- Chambers v. State, 613 So. 2d 118 (Fla. 2d DCA 1993)
- Kaufman v. W.G. Lassiter, Jr., 616 So. 2d 491 (Fla. 4th DCA 1993)