MICHAEL T. PENNINGTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Pennington appealed the summary denial of his post-conviction relief motion under Florida Rule of Criminal Procedure 3.850, challenging his conviction. The court affirmed the denial of most claims but reversed the summary denial of ineffective assistance of counsel claims regarding failure to investigate and present an alibi defense and failure to pursue severance, requiring an evidentiary hearing.
The court affirmed the summary denial of most claims but reversed the denial of the alibi defense and severance claims because the record was inadequate to conclusively demonstrate appellant was entitled to no relief. An evidentiary hearing was required to determine the merits of these allegations or to obtain record attachments conclusively refuting them.
[1] A trial court's summary denial of a motion for post-conviction relief based on ineffective assistance of counsel must be reversed if the record does not conclusively demo…
[2] Failure to investigate and present an alibi defense can constitute ineffective assistance of counsel.
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“summary denial of 3.850 motion reversed where allegation that trial counsel was ineffective for moving for severance showed possible deprivation of defendant's substantive legal rights”
Establishes that summary denial is improper where ineffective assistance claims implicate substantive legal rights
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePennington was convicted at trial and subsequently filed a post-conviction relief motion alleging his trial counsel was ineffective. The trial court s…
The full statement of facts, procedural history, and disposition for this case are member content.
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MICKLE, Judge.
In this appeal from the summary denial of appellant’s motion for post-conviction relief, filed pursuant to Fla.R.Crim.P. 3.850, we affirm the denial of all of appellant’s claims except for the allegations that trial counsel was ineffective in failing to investigate and present an alibi defense and in failing diligently to pursue a severance of the trials of appellant and his co-defendant.
The trial court denied relief on th.e basis that appellant had failed to show “that the alleged omissions by his attorney were serious deficiencies below that of competent counsel or were substantial enough to affect the outcome of the trial.” Without an adequate record, however, we are in no position to affirm such a fact-based determination, as a plethora of recent cases attests. See e.g., Thames v. State, 454 So. 2d 1061 (Fla. 1st DCA 1984) (summary denial of 3.850 motion reversed where allegation that trial counsel was ineffective for moving for severance showed possible deprivation of defendant’s substantive legal rights); Mallory v. State, 577 So. 2d 987 (Fla. 4th DCA 1991) (reversing summary denial of claim that defense counsel failed to investigate alibi witnesses); Williams v. State, 642 So. 2d 67 (Fla. 1st DCA 1994) (failing to call alibi witnesses can be ineffective assistance of counsel and trial court must attach record conclusively demonstrating no entitlement to relief or hold evidentiary hearing); Majewski v. State, 487 So. 2d 32 (Fla. 1st DCA 1986) (failure to interview or call alibi witnesses can support a finding of ineffective assistance of counsel); Young v. State, 511 So. 2d 735 (Fla. 2d DCA 1987) (trial counsel’s failure to call alibi witnesses constitutes prima facie showing of entitlement to relief, subject to rebuttal).
Because the trial court’s order and attachments fail to demonstrate conclusively that appellant is entitled to no relief, we must reverse and remand for an evidentiary hearing for the purpose of rendering a determination on the merits of the aforementioned allegations, or for record attachments conclusively refuting same. In all other respects, the order denying post-conviction relief is affirmed.
AFFIRMED in part; REVERSED in part and REMANDED for further proceedings.
MINER and LAWRENCE, JJ., concur.
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Citator
Cited By
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Rodrick Carter v. State, 687 So. 2d 1321 (Fla. 4th DCA 1997)…other person, Dwayne Morrison. Appellant’s allegations on this ground were legally sufficient and, thus, required either an evidentiary hearing or attachment of portions of the record not previously attached to refute them. See Pennington v. State, 680 So. 2d 507 (Fla. 1st DCA 1996); Wallace v. State, 679 So. 2d 841 (Fla. 2d DCA 1996); Mallory v. State, 577 So. 2d 987 (Fla. 4th DCA 1991). Thus, on this ground, we reverse and remand the cause to the trial court in order that the trial court may either condu…
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Stokes v. State, 763 So. 2d 1219 (Fla. 1st DCA 2000)…e alibi witness. Stokes has stated a facially sufficient claim, see Greeson v. State, 729 So. 2d 397 (Fla. 1st DCA 1998), and the attachments to the order denying post-conviction relief do not conclusively refute this claim, see Pennington v. State, 680 So. 2d 507 (Fla. 1st DCA 1996). Accordingly, we AFFIRM in part, REVERSE in part and REMAND for an evidentiary hearing. ERVIN, VAN NORTWICK AND BROWNING, JJ., CONCUR.…
Authorities Cited
- Williams v. State, 642 So. 2d 67 (Fla. 1st DCA 1994)
- Majewski v. State, 487 So. 2d 32 (Fla. 1st DCA 1986)
- Thames v. State, 454 So. 2d 1061 (Fla. 1st DCA 1984)
- Young v. State, 511 So. 2d 735 (Fla. 2d DCA 1987)
- Mallory v. State, 577 So. 2d 987 (Fla. 4th DCA 1991)