BERNARD N. DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Davis appealed the denial of his Rule 3.850 motion for postconviction relief without an evidentiary hearing. The appellate court affirmed the trial court's denial, finding that the claims raised were either procedurally barred, refuted by the record, or failed to satisfy the ineffectiveness of counsel standard.
The trial court properly denied the motion without an evidentiary hearing because the points raised were either procedurally barred, directly refuted by attachments to the order, or, as to the ineffectiveness of counsel claim, failed to show that a different trial strategy would have altered the outcome.
[1] A trial court's order denying a motion for postconviction relief without an evidentiary hearing must be reversed if the record does not conclusively show that the appella…
[2] Appellate review of an order denying postconviction relief without a hearing is governed by Florida Rule of Appellate Procedure 9.140(g), which requires review of the mot…
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“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.”
This statement sets forth the governing standard of review for postconviction relief motions under Florida Rule of Appellate Procedure 9.140(g).
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDavis filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the motion without conduct…
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WARNER, Judge.
The appellant filed an appeal from the denial of his motion for posteonviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The trial court ruled on the motion without an evidentiary hearing. We have reviewed the motion and order, together with its attachments and have concluded that the points raised either (1) are procedurally barred, (2) are directly refuted by the attachments to the order, or (3) as to the ineffectiveness of counsel claim, do not show that the result would have been different if the course that is now urged by the defendant had been followed at trial. Duperier v. State, 590 So. 2d 511 (Fla. 4th DCA 1991).
We would have already disposed of this case as an affirmance but for the fact that appellant has recently filed a brief, even though one is not necessary. Our review of the appeal is governed by Florida Rule of Appellate Procedure 9.140(g). The rule requires the court to review the motion and arguments made therein together with the order of denial and the attachments thereto. “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.” Fla. R.App.P. 9.140(g). No briefs are required, and the method of review is the same as we use in reviewing writs. That is, if our review shows a preliminary basis for reversing the trial court’s order, we order a response by the state. Otherwise, neither the appellant nor the state are required to file briefs.
We explain our process because we have noted of late many pro se appellants filing briefs on orders denying postconviction relief without a hearing. These are not only not necessary, they may in fact slow the process of our review. Generally, the briefs are not considered, because either the arguments were made in the postconviction relief motion, or they improperly raise additional issues not contained in the postconviction relief motion. It is improper to raise for the first time on appeal matters which should have been raised to the trial court.
When we find that the record does not support the order denying the conviction, we order a response from the state, and we also allow the appellant to reply. Therefore, we do permit briefing on appeal from the appellant when our record review of the proceedings indicates that the case may not be summarily affirmed.
A full review having been conducted of the motion and order with attachments, we affirm the trial court’s order. DELL and PARIENTE, JJ., concur.
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