FRANK DURDEN, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frank Durden appeals the trial court's summary denial of his Rule 3.850 motion for post-conviction relief based on ineffective assistance of counsel claims. The appellate court affirms the dismissal of most claims but reverses as to two ineffective assistance claims and remands for an evidentiary hearing or record review.
Two of Durden's ineffective assistance claims are sufficient to require either an evidentiary hearing or attachment of record portions to refute the claims. The claim regarding failure to raise voluntary intoxication as a defense and the claim regarding failure to investigate and suppress the confession both require further proceedings. The remaining claims in Durden's motion were defective on their face and were properly denied.
[1] Allegations that trial counsel failed to raise voluntary intoxication as a defense, supported by the defendant's statement of intoxication and trial evidence, are suffici…
[2] Allegations that trial counsel failed to investigate the circumstances of a confession and file a motion to suppress, based on claims of involuntary confession due to pro…
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“All but two are defective on their face. We treat in detail these two claims to help the trial court resolve them with minimum judicial labor. Each claim involves ineffective assistance of counsel, and each requires either an evidentiary hearing or attachment of portions of the record to refute the claim.”
Establishes the court's standard for reviewing summary denials of post-conviction relief: factually sufficient claims must receive either an evidentiary hearing or record-based refutation.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDurden filed a second motion for post-conviction relief after his first appeal was dismissed without prejudice for improper verification. In his secon…
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THOMPSON, Judge.
Frank Durden, Jr., appeals the summary denial of his motion for post-conviction relief which was filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. We affirm in part and reverse in part.
This appeal is the second time that Durden has appealed an order of the trial court summarily denying his motion for post-conviction relief. This court dismissed Durden’s first appeal, without prejudice to Durden to refile a properly sworn motion. After the dismissal, the trial court attempted to provide this court with a copy of the trial record to refute the claims asserted in Durden’s first motion. We returned the record to the trial clerk because no appeal remained pending before us. Durden v. State, 652 So. 2d 949 (Fla. 5th DCA 1995).
Durden now appeals the trial court’s summary denial of his second motion. Although he raises several claims for relief, we conclude that all but two are defective on their face. We treat in detail these two claims to help the trial court resolve them with minimum judicial labor. Each claim involves ineffective assistance of counsel, and each requires either an evidentiary hearing or attachment of portions of the record to refute the claim.
The first claim involves the failure of Durden’s trial counsel to raise voluntary intoxication as a defense. Durden alleges that he told his counsel before trial that he was intoxicated because of drug use when the crime was committed. He also alleges that evidence presented at trial supports this claim. We agree with Durden that these allegations are sufficient to require the trial court to either conduct an evidentiary hearing or attach portions of the record refuting Durden’s claim that his counsel was ineffective for failing to consider a voluntary intoxication defense. Jenkins v. State, 625 So. 2d 883 (Fla. 1st DCA 1993); Reed v. State, 611 So. 2d 48 (Fla. 1st DCA 1992); McCoy v. State, 598 So. 2d 169 (Fla. 1st DCA 1992).
Durden’s second claim is that his trial counsel failed to adequately investigate the circumstances surrounding his confession and failed to file a motion to suppress the confession. Citing Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969), and Fillinger v. State, 349 So. 2d 714 (Fla. 2d DCA 1977), cert. denied, 374 So. 2d 101 (Fla.1979), Durden alleges that his confession was involuntary because the detective who questioned him made promises that “delude[d] [him] or exert[ed] undue influence over him” and because Durden “was illiterate, ... had no education, could not read or write and was at best unable to intelligently communicate effectively.” Durden contends that his counsel’s failure to file a motion to suppress precluded a judicial determination of the voluntariness of his confession and, thus, changed the outcome of his trial. We do not address the merits of Durden’s contentions; however, we agree that these allegations also are sufficient to require the trial court to either conduct an evidentiary hearing or attach portions of the record refuting Durden’s claim that his counsel was ineffective for failing to file a motion to suppress. Jackson v. State, 640 So. 2d 1173 (Fla. 2d DCA 1994); Boutwell v. State, 563 So. 2d 798 (Fla. 1st DCA 1990); Fortner v. State, 538 So. 2d 85 (Fla. 2d DCA 1989).
Accordingly, we remand to the trial court for disposition of these two claims consistent with this opinion. We affirm the trial court’s order as to Durden’s remaining claims.
AFFIRMED in part; REVERSED in part; REMANDED with directions.
COBB and GRIFFIN, JJ., concur.
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J.C. Joyner v. State, 728 So. 2d 329 (Fla. 3d DCA 1999)…Hester v. State, 23 Fla. L. Weekly D1567, - So. 2d - (Fla. 1st DCA 1998); Bartley v. State, 689 So. 2d 372 (Fla. 1st DCA 1997); Young v. State, 661 So. 2d 406 (Fla. 1st DCA 1995); Flores v. State, 662 So. 2d 1350 (Fla. 2d DCA 1995); Durden v. State, 657 So. 2d 919 (Fla. 5th DCA 1995); Jenkins v. State, 625 So. 2d 883 (Fla. 1st DCA 1993). We therefore reverse the order under review and remand for the trial court to attach portions of the record conclusively refuting the defendant’s allegations, or to conduct a…
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Fluckers v. State, 731 So. 2d 722 (Fla. 3d DCA 1999)…for further proceedings on that issue as to the burglary charge only. See Bartley v. State, 689 So. 2d 372 (Fla. 1st DCA 1997); Flores v. State, 662 So. 2d 1350 (Fla. 2d DCA 1995); Young v. State, 661 So. 2d 406 (Fla. 1st DCA 1995); Durden v. State, 657 So. 2d 919 (Fla. 5th DCA 1995). Appellant is not entitled to a hearing on the voluntary intoxication issue as relates to false imprisonment, because it is a general intent crime; the misdemeanor battery claim, which is immaterial in the scheme of things and…
Authorities Cited
- Boulden v. Holman, 394 U.S. 478 (U.S. 1969)
- Fillinger v. State, 349 So. 2d 714 (Fla. 2d DCA 1977)
- McCOY v. State, 598 So. 2d 169 (Fla. 1st DCA 1992)
- Bailey v. State, 640 So. 2d 1173 (Fla. 2d DCA 1994)
- Boutwell v. State, 563 So. 2d 798 (Fla. 1st DCA 1990)
- Fortner v. State, 538 So. 2d 85 (Fla. 2d DCA 1989)
- In the Interest of J.H. v. State, 625 So. 2d 883 (Fla. 1st DCA 1993)
- Reed v. State, 611 So. 2d 48 (Fla. 1st DCA 1992)
- Jenkins v. State, 625 So. 2d 883 (Fla. 1st DCA 1993)
- Durden v. State, 652 So. 2d 949 (Fla. 5th DCA 1995)