EDWARD J. HUBBARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed trial court's denial of ineffective assistance of counsel claim under Rule 3.850 because the state's response lacked supporting record citations, requiring remand for evidentiary hearing or record attachment.
A trial court must attach the record cited in support of factual allegations denying a Rule 3.850 ineffective assistance of counsel motion, or conduct an evidentiary hearing.
[1] A trial court denying a Rule 3.850 ineffective assistance of counsel motion must attach the record supporting factual allegations in the state's response or conduct an ev…
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Join FLexlaw to unlock all legal intelligenceEdward Hubbard filed a Rule 3.850 motion alleging ineffective assistance of counsel. The trial court found the motion facially sufficient but denied r…
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PER CURIAM.
We reverse the trial court’s denial of that portion of Edward Hubbard’s Rule 3.850 motion alleging ineffective assistance of counsel. The trial court found the motion facially sufficient, but denied relief because the response filed by the state contained factual allegations which, if true, demonstrate that appellant is not entitled to relief. Neither the state’s response nor the trial court’s order denying appellant’s motion, however, include the. portion of the record cited by the state in support of those factual allegations. We must, therefore, reverse and remand to the trial court for attachment of record conclusively demonstrating that Mr. Hubbard is not entitled to relief, or for an evidentiary hearing on this issue. Fla.R.Crim.P. 3.850(d) (1995).
We reject appellant’s second allegation of error. Appellant’s convictions and sentences were the product of a plea bargain between appellant and the state. Such a negotiated sentence precludes appeal from or collateral challenge of (apart from the allegation of ineffective assistance of counsel discussed above) the convictions and sentences on double jeopardy grounds. Novaton v. State, 634 So. 2d 607, 609 (Fla.1994); Harris v. State, 641 So. 2d 126, 128 (Fla. 1st DCA 1994), review denied, 651 So. 2d 1194 (Fla.1995).
WOLF, LAWRENCE, and BENTON, JJ„ concur.
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Citator
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Betts v. State, 792 So. 2d 589 (Fla. 1st DCA 2001)…we reverse the order and remand either for complete attachments conclusively demonstrating that Appellant is not entitled to relief, or for an evidentiary hearing. Rule 3.850(d); Brown v. State, 689 So. 2d 1287 (Fla. 1st DCA 1997); Hubbard v. State, 662 So. 2d 746 (Fla. 1st DCA 1995). The findings in the order are AFFIRMED as to Grounds One through Eleven, and Thirteen and Fourteen; and REVERSED and REMANDED as to Ground Twelve for attachments or an evi-dentiary hearing. BOOTH and BENTON, JJ., CONCUR.…
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Weitz v. State, 795 So. 2d 1021 (Fla. 2d DCA 2001)…hat — that his plea [*1023] was involuntary because his counsel was ineffective in failing to advise him of the double jeopardy protection. We conclude that this is a facially sufficient claim which may entitle Weitz to relief. See Hubbard v. State, 662 So. 2d 746 (Fla. 1st DCA 1995) (noting that a negotiated sentence precluded appeal or collateral challenge of conviction and sentence on double jeopardy grounds apart from an allegation of ineffective assistance of counsel). Because Weitz’s allegations are not…
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Long v. State, 678 So. 2d 925 (Fla. 1st DCA 1996)…the double jeopardy clause. As a general rule, a negotiated plea and sentence precludes an appeal of convictions and sentences on double jeopardy grounds. United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989); Hubbard v. State, 662 So. 2d 746 (Fla. 1st DCA 1995). There is an exception to this general rule when (a) the plea is a general plea as distinguished from a plea bargain; (b) the double jeopardy violation is apparent from the record; and (c) there is nothing in the record to indica…
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
- Novaton v. State, 634 So. 2d 607 (Fla. 1994)
- Harris v. State, 641 So. 2d 126 (Fla. 1st DCA 1994)