RAYMOND ALONZO MIMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Raymond Alonzo Mims appealed the denial of his Rule 3.850 postconviction relief motion alleging ineffective assistance of counsel for his trial attorney's refusal to allow him to testify. The court reversed and remanded for an evidentiary hearing, holding that counsel's affidavit submitted after the motion was filed cannot be used to summarily deny the motion.
A trial court may not summarily deny a Rule 3.850 motion based on counsel's affidavit that was not part of the files or record when the postconviction motion was filed, as such an affidavit constitutes new factual matter requiring an evidentiary hearing to resolve contradictory allegations.
[1] A motion for postconviction relief alleging ineffective assistance of counsel based on the trial attorney's refusal to permit the appellant to testify in his own behalf r…
[2] An affidavit of counsel that was unavailable to the trial court when a postconviction relief motion was filed cannot solely be relied upon to refute the allegations in th…
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Join FLexlaw to unlock all legal intelligence“An affidavit of counsel that was unavailable to the trial court when the Rule 3.850 motion was filed is not part of the 'files or record' on which the court may solely rely to refute conclusively the appellant's allegations pursuant to Rule 3.850(d).”
Establishes the governing rule that post-filing affidavits cannot be used to summarily deny postconviction motions
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMims filed a Rule 3.850 postconviction motion alleging ineffective assistance of counsel based on his trial attorney's refusal to permit him to testif…
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[*663] MICKLE, Judge.
Raymond Alonzo Mims appeals from an amended order denying Ms June 1994 motion for posteonviction relief. Fla. R.Crim.P. 3.850.
We reverse and remand for an evidentiary hearing. Havis v. State, 555 So. 2d 417 (Fla. 1st DCA 1989).
The motion, in pertinent part, alleged ineffective assistance of counsel based on the trial attorney’s refusal to permit the appellant to testify in Ms own behalf. See Mims v. State, 656 So. 2d 577 (Fla. 1st DCA 1995) (finding the appellant’s other argument to be without merit, and reversing and remanding for an evidentiary hearing or attachments relating to the issue at hand).
On remand, the trial court addressed counsel’s alleged failure to allow the appellant to testify, and it attached a September 1995 affidavit prepared by defense counsel after the appellant filed Ms Rule 3.850 motion. Counsel expressly demed ever telling the appellant that he could not testify or preventing him from testifying. Relying solely on this affidavit, the trial court concluded that an evidentiary hearing would be “an exercise in futility,” and it deMed the motion.
The appellant contends that it was reversible error to deny Ms motion summarily, and the state correctly concedes that the affidavit does not constitute sufficient evidence to refute the claim in tMs case. We are constrained to reverse the order and to remand for an evidentiary hearing addressing the new factual matters raised in the affidavit, wMch serve as “the functional equivalent of testimony” contradicting the appellant’s sworn allegations. Cintron v. State, 508 So. 2d 1315,1316 (Fla. 2d DCA 1987) (deputy sheriffs affidavit stating that he had given Miranda warnings in Sparnsh to Híspame defendant was inadequate basis for summarily denying Rule 3.850 motion alleging counsel’s ineffectiveness for failure to move to suppress tainted confession); Havis, 555 So. 2d at 418; Harrell v. State, 458 So. 2d 901, 902 (Fla. 2d DCA 1984).
An affidavit of counsel that was unavailable to the trial court when the Rule 3.850 motion was filed is not part of the “files or record” on wMch the court may solely rely to refute conclusively the appellant’s allegations pursuant to Rule 3.850(d).
See, e.g., Maddry v. State, 649 So. 2d 334 (Fla. 1st DCA 1995) (where summarily demed Ride 3.850 motion alleged ineffective counsel for failure to make proper objection to similar fact evidence so as to preserve issue, counsel’s affidavit, wMch was not part of record at time of filing the postconviction motion, was insufficient to meet requirements of rule); Morris v. State, 624 So. 2d 864 (Fla. 2d DCA 1993); Havis, 555 So. 2d at 417 (counsel’s affidavit challenging defendant’s allegations in a Rule 3.850 motion did not constitute part of the “files and records,” available to the trial court when the motion was filed, so that an evidentiary hearing was required to address the “new factual matter” raised in the affidavit).
In accordance with Havis and its progeny, we REVERSE the order and REMAND for an evidentiary hearing.
MINER and WEBSTER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Fitzgerald v. State, 892 So. 2d 541 (Fla. 1st DCA 2005)…ounsel misadvised him about the consequences of testifying. Jennings v. State, 685 So. 2d 879 (Fla. 2d DCA 1996). The trial court improperly relied on extra-record information to deny Appellant’s motion without an evidentiary hearing. Mims v. State, 672 So. 2d 662 (Fla. 1st DCA 1996). We, therefore, reverse the trial court’s summary denial of this claim and remand either for further attachment of record portions to refute Appellant’s claim or for an evidentiary hearing. AFFIRMED, in part, REVERSED, in part,…
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Vencil v. State, 715 So. 2d 334 (Fla. 1st DCA 1998)…bation Office. A trial court cannot deny a 3.850 motion without an evi-dentiary hearing on the basis of information which is obtained by the court after a petitioner files a 3.850 motion and from sources [*336] outside the record. See Mims v. State, 672 So. 2d 662, 663 (Fla. 1st DCA 1996). The trial court’s reliance on its communication with the probation office to change the appellant’s score sheet calculation constitutes error. As noted by the supreme court in Smith v. State, 708 So. 2d 253, 255 (Fla.1998)…
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Ruiz v. State (Fla. 3d DCA 2019)…ounsel that was unavailable to the trial court when the Rule 3.850 motion was filed is not part of the ‘files or record’ on which the court may solely rely to refute conclusively the appellant’s allegations pursuant to Rule 3.850(d).” Mims v. State, 672 So. 2d 662, 663 (Fla. 1st DCA 1996). We, therefore, reverse the summary denial of claims Three, Five, Six, Thirteen, Fourteen, Sixteen, Eighteen, Nineteen, Twenty and ground A, and remand for attachment of the portions of the record conclusively refuting each…
Authorities Cited
- Cintron v. State, 508 So. 2d 1315 (Fla. 2d DCA 1987)
- Harrell v. State, 458 So. 2d 901 (Fla. 2d DCA 1984)
- Maddry v. State, 649 So. 2d 334 (Fla. 1st DCA 1995)
- Morris v. State, 624 So. 2d 864 (Fla. 2d DCA 1993)
- Mims v. State, 656 So. 2d 577 (Fla. 1st DCA 1995)
- Randall v. State, 555 So. 2d 417 (Fla. 4th DCA 1989)
- Dawson Eugene Havis v. State of Fla. & George L. Carlisle, 555 So. 2d 417 (Fla. 1st DCA 1989)