CHARLIE JOE SIMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in summarily denying the appellant's motion for post-conviction relief without attaching portions of the record.
Appellant sought post-conviction relief alleging ineffective assistance of counsel for preventing him from testifying. The trial court denied the moti…
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PER CURIAM.
Appellant seeks review of a final order summarily denying, as “an abuse of process,” his motion seeking post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Of the instances of alleged ineffective assistance of trial counsel asserted by appellant, only one merits discussion.
Appellant claimed that trial counsel prevented him from testifying in his own defense, notwithstanding his repeatedly expressed desire to do so. Such a claim is legally sufficient. E.g., Vandenburgh v. State, 658 So. 2d 181 (Fla. 1st DCA 1995); Wilson v. State, 647 So. 2d 185 (Fla. 1st DCA 1994).
The order denying appellant’s motion has no portions of the record attached. Accordingly, we are unable to conclude that appellant is clearly not entitled to any relief on this claim. Therefore, we reverse and remand as to this claim only. On remand, the trial court shall either attach to its order denying relief portions of the record conclusively showing that appellant is entitled to no relief, either because the claim constitutes an abuse of process or is factually without merit, or hold an evidentiary hearing. In all other respects, the order is affirmed.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.
MINER, WEBSTER and LAWRENCE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Wilson v. State, 647 So. 2d 185 (Fla. 1st DCA 1994)
- Vandenburgh v. State, 658 So. 2d 181 (Fla. 1st DCA 1995)
- Chase Manhattan Inv. Servs., Inc. v. Edilberto J. Miranda, 658 So. 2d 181 (Fla. 3d DCA 1995)