MARTIN WAYNE RECTOR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Martin Wayne Rector appealed a summary denial of his Rule 3.850 post-conviction motion claiming ineffective assistance of counsel. The court reversed, finding the motion was timely filed and an evidentiary hearing was required to determine whether counsel's admission of guilt was tactical trial strategy or ineffective assistance.
Rector's Rule 3.850 motion was timely filed because the two-year limitation period commenced on January 27, 1993 (the day after the Florida Supreme Court's January 26, 1993 denial of review) and expired on January 27, 1995. An evidentiary hearing was required because the record did not conclusively refute allegations of ineffective assistance of counsel regarding defense counsel's trial strategy.
[1] The two-year time limit for filing a rule 3.850 motion commences when the Florida Supreme Court disposes of a petition for review of the district court's decision on dire…
[2] In computing the two-year time limit for a rule 3.850 motion, the day of the act or event from which the period begins to run is not included.
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Join FLexlaw to unlock all legal intelligence“A judgment and sentence becomes final and the two year time limit of Rule 3.850(b) commences when the Florida Supreme Court disposes of a petition for review of the district court's decision on direct appeal.”
Establishes the triggering event for the two-year post-conviction relief filing deadline.
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Join FLexlaw to unlock all legal intelligenceThe Florida Supreme Court declined Rector's petition for review on January 26, 1993. Rector filed his Rule 3.850 motion for post-conviction relief on …
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GUNTHER, Chief Judge.
Appellant, Martin Wayne Rector, defendant below (Defendant), appeals a summary denial of his rule 3.850 motion without an evidentiary hearing and an order denying Defendant’s motion for rehearing. We reverse because the trial court erred in finding that Defendant’s rule 3.850 motion was untimely filed and an evidentiary hearing should have been held on Defendant’s allegations of ineffective assistance of counsel.
A judgment and sentence becomes final and the two year time limit of Rule 3.850(b) commences when the Florida Supreme Court disposes of a petition for review of the district court’s decision on direct appeal. Gallo v. State, 571 So. 2d 78, 79 (Fla. 4th DCA 1990); Brown v. State, 617 So. 2d 1105 (Fla. 1st DCA 1993). Furthermore, Rule 3.040, Florida Rules of Criminal Procedure, provides that in computing the two year time limit, the day of the act or event from which the designated period of time begins to run is not to be included. Finally, a Rule 3.850 motion that is notarized on a certain date is deemed to have been filed on that date. Olkewicz v. State, 633 So. 2d 1132 (Fla. 4th DCA 1994).
In the instant case, the Florida Supreme Court declined Defendant’s petition for review of this court’s decision on direct appeal on January 26, 1993. Rector v. State, 613 So. 2d 8 (Fla.1993). Thus, according to Rule 3.040, Florida Rules of Criminal Procedure, the two year time limit began to run the following day, January 27,1993, and ran until January 27, 1995. Defendant’s motion for post-conviction relief was notarized on January 27, 1995. Accordingly, Defendant timely filed his Rule 3.850 motion for post-conviction relief.
Upon remand, we direct the trial court’s attention to only one of three issues raised by Defendant, Defendant’s ineffective assistance of counsel claim. In his motion for post-conviction relief, Defendant alleged that his appointed attorney told the jury that Defendant was, in fact, guilty of killing the victim. Defendant also alleged that his counsel then proceeded to attack the lack of physical evidence.
While defense counsel is entitled to broad discretion concerning trial strategy, where the trial court is confronted with a claim of ineffective assistance of counsel, an evidentiary hearing is usually required to determine whether the act or omission complained of was tactical. Anthony v. State, 660 So. 2d 374, 376 (Fla. 4th DCA 1995). Moreover, Florida Rule of Appellate Procedure 9.140(g) 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.”
Because no record excerpts of defense counsel’s statements were attached to the order appealed, the record does not conclusively refute Defendant’s allegations of ineffective assistance of counsel. Accordingly, we reverse and remand for an evidentiary hearing to resolve the disputed issue as to defense counsel’s trial strategy in admitting Defendant’s guilt. On all other issues, we affirm.
REVERSED AND REMANDED.
DELL and STEVENSON, JJ., concur.
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Maximo Gordon v. State, 181 So. 3d 1193 (Fla. 4th DCA 2015)…t police officers had a motive to arrest him, other than his allegedly unlawful conduct. The State argued this claim involved trial strategy. It is well-settled that an evidentiary hearing must be held to evaluate this position. See Rector v. State, 668 So. 2d 1104, 1105 (Fla. 4th DCA 1996). As for the included claim of failure to call a particular witness, the State has acknowledged that the postconviction court erred in summarily denying relief without affording Gordon leave to amend to allege, if he can do…
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Tamarick Cruz v. State, 222 So. 3d 572 (Fla. 4th DCA 2017)…t this defense, or that he was never informed of an alibi witness, the trial court should have conducted an evidentiary hearing rather than summarily denying relief. Gordon v. State, 181 So. 3d 1193, 1194 (Fla. 4th DCA 2015) (citing Rector v. State, 668 So. 2d 1104, 1105 (Fla. 4th DCA 1996)). We affirm without discussion the summary denial of ground two and the denial of ground ten after an evidentiary hearing. For the reasons above, we reverse the trial court’s summary denial of grounds five [*575] and seven…
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Hunt v. State, 728 So. 2d 338 (Fla. 4th DCA 1999)…0 motion because it was not filed within thirty days after sentencing, where sentencing occurred on February 5, 1998, and the motion was notarized by Department of Corrections personnel twenty-eight days later, on March 5, 1998. See Rector v. State, 668 So. 2d 1104 (Fla. 4th DCA 1996); Olkewicz v. State, 633 So. 2d 1132 (Fla. 4th DCA 1994). Moreover, the motion was date-stamped by the circuit court on Monday, March 9, 1998, which was within the thirty-day period ending on Saturday, March 7, as extended by rule…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anthony v. State, 660 So. 2d 374 (Fla. 4th DCA 1995)
- Brown v. State, 617 So. 2d 1105 (Fla. 1st DCA 1993)
- Olkewicz v. State, 633 So. 2d 1132 (Fla. 4th DCA 1994)
- Gallo v. State, 571 So. 2d 78 (Fla. 4th DCA 1990)