LORENZO EDWARDS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in summarily denying the defendant's motion for post-conviction relief without providing reasons or record attachments for two specific claims.
The defendant appealed the summary denial of his motion for post-conviction relief, alleging ineffective assistance of counsel for failing to investig…
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PER CURIAM.
The defendant appeals the summary denial of his Rule 3.850 motion for post-conviction relief. The defendant has raised several grounds in his motion, two of which have merit. The defendant alleged that his trial counsel was ineffective in not investigating or calling certain witnesses who would have exonerated the defendant. The defendant also alleged his trial counsel was ineffective in failing to request a jury instruction on a lesser included offense. In the order denying relief the trial court gave no reasons to support the denial nor did the trial court attach any portions of the record to refute the defendant’s claims.
When a trial court summarily denies a motion for post-conviction relief without holding an evidentiary hearing or attaching portions of the record to refute the allega tions, review is limited to determining whether, accepting the allegations as true, the motion shows the defendant is not entitled to relief. Gorham v. State, 521 So. 2d 1067 (Fla. 1988); Deen v. State, 627 So. 2d 625 (Fla. 5th DCA 1993); Waters v. State, 612 So. 2d 685 (Fla. 5th DCA 1993); Debose v. State, 580 So. 2d 638 (Fla. 5th DCA 1991).
The order summarily denying the defendant’s Rule 3.850 motion is reversed as to the two claims discussed above and remanded to the trial court with directions to either attach portions of the record that conclusively refute the defendant’s claims or hold an evidentiary hearing. We affirm the order denying relief on all other grounds.
AFFIRMED IN PART, REVERSED IN PART WITH INSTRUCTIONS.
DAUKSCH, COBB and PETERSON, JJ., concur.
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Alwin J. Jacobs v. State, 880 So. 2d 548 (Fla. 2004)…call certain witnesses. We explained: Without an evidentiary hearing or any record attachments refuting petitioner’s allegations, the trial court was bound to assume that the allegations in petitioner’s 3.850 motion were true. See Edwards v. State, 652 So. 2d 1276, 1276-77 (Fla. 5th DCA 1995). We conclude that the Fifth District, by affirming the trial court’s order on the basis that “defense counsel could have well decided that calling them would not have been beneficial,” Ford, 776 So. 2d at 374, erroneousl…
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Ford v. State, 825 So. 2d 358 (Fla. 2002)…hether what counsel did was tactical. Without an evidentiary hearing or any record attachments refuting petitioner’s allegations, the trial court was bound to assume that the allegations in petitioner’s 3.850 motion were true. See Edwards v. State, 652 So. 2d 1276, 1276-77 (Fla. 5th DCA 1995). We conclude that the Fifth District, by affirming the trial court’s order on the basis that “defense counsel could have well decided that calling them would not have been beneficial,” Ford, 776 So. 2d at 374, erroneousl…
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Hatten v. State, 698 So. 2d 899 (Fla. 5th DCA 1997)…ted in a post-eonviction proceeding). Therefore, we affirm the trial court’s denial of these two grounds for relief. However, we find that the trial court erred in summarily denying the remaining ineffective assistance claims. In Edwards v. State, 652 So. 2d 1276 (Fla. 5th DCA 1995), we held that a claim that trial counsel failed to investigate or call exculpatory witnesses was facially sufficient and must either be refuted by attachments or an evidentiary hearing held. Hatten claims that he gave his counsel…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gorham v. State, 521 So. 2d 1067 (Fla. 1988)
- Waters v. State, 612 So. 2d 685 (Fla. 5th DCA 1993)
- DeVITTO v. State, 580 So. 2d 638 (Fla. 1st DCA 1991)
- Ozell Debose, Jr. v. State, 580 So. 2d 638 (Fla. 5th DCA 1991)
- Deen v. State, 627 So. 2d 625 (Fla. 5th DCA 1993)
- Luna v. State, 627 So. 2d 625 (Fla. 5th DCA 1993)