WILLIE JAMES GAMBLE, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Willie Gamble appealed the summary denial of his Rule 3.850 motion for ineffective assistance of counsel following revocation of his community control and probation. The appellate court found his allegations of ineffective assistance facially sufficient and reversed for further proceedings.
The court held that Gamble's three allegations concerning ineffective assistance of counsel at the revocation hearing and sentencing were facially sufficient to warrant relief under Rule 3.850 and reversed the summary denial.
[1] A rule 3.850 motion for postconviction relief must be granted if it raises facially sufficient allegations of ineffective assistance of counsel.
[2] A defendant's probation cannot be revoked if the defendant was never formally charged with a violation of probation.
Previewing 2 of 6 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“Gamble's three allegations pertaining to the ineffectiveness of his attorney at the revocation hearing and sentencing are, however, meritorious and provide a basis for 3.850 relief.”
Court's conclusion that the ineffective assistance claims were sufficient to warrant relief
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Join FLexlaw to unlock all legal intelligenceGamble was convicted of burglary and grand theft and sentenced to community control followed by probation. During the community control phase, he was …
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FRANK, Acting Chief Judge.
Willie Gamble seeks relief from the summary denial of his rule 3.850 motion. We find that his motion raises facially sufficient allegations of ineffective assistance of counsel. Hence, we reverse and remand for further proceedings.
Gamble was convicted of several counts of burglary and grand theft and was placed on community control to be followed by a term of probation. During the community control portion of his sentence, an affidavit of violation was filed. After a hearing, Gamble was found to have violated two conditions, i.e., that he was absent from his home without authorization and that he had failed to begin community service. The trial court revoked Gamble’s community control and probation and sentenced him to twenty-five years imprisonment.
Gamble’s initial complaint, that his probation should not have been revoked because it had not yet commenced, is without merit. See Villabol v. State, 595 So. 2d 1057 (Fla. 2d DCA 1992). Gamble’s three allegations pertaining to the ineffectiveness of his attorney at the revocation hearing and sentencing are, however, meritorious and provide a basis for 3.850 relief. Grier v. State, 424 So. 2d 992 (Fla. 2d DCA 1983).
The affidavit charged Gamble with a violation of community control but he was never properly noticed or formally charged with a violation of probation. He rightly contends that his counsel was ineffective in failing to object to this discrepancy at sentencing. The contention is facially sufficient and, if unrefuted, may require that the finding of a violation of probation be vacated. See Wynn v. State, 591 So. 2d 964 (Fla. 2d DCA 1991).
Second, Gamble asserts that his attorney failed to investigate adequately and impeach a key witness, a police officer. The trial court offered to continue the hearing in order to reschedule the deposition of the police officer who had previously failed to attend his deposition. Gamble’s counsel declined the continuance and, after a brief interview of the officer, opted to proceed with the hearing. The officer then testified that he had been on duty on two occasions when Gamble was away from his home without authorization. Gamble alleges that this testimony was inconsistent with the officer’s work time-card, filed with the trial court, but that his attorney had failed to discover this inconsistency due to his cursory investigation of the officer. Third, Gamble claims that his attorney failed to communicate with witnesses who could establish that Gamble had, in fact, taken steps towards the completion of his community service. The failure to interview meaningful defense witnesses known to a defendant’s counsel can form the basis for relief. Campbell v. State, 616 So. 2d 995 (Fla. 2d DCA 1992).
In sum, we find Gamble’s allegations facially sufficient and, therefore, vacate the trial court’s order and remand for further proceedings consistent with this opinion.
BLUE and QUINCE, JJ., concur.
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Klaus v. State, 236 So. 3d 483 (Fla. 5th DCA 2018)…009). This could have made a difference at trial because Mitchell was a key witness for the State, and thus, his "trustworthiness was critical to the State's case." Smith v. State , 185 So. 3d 585, 585 (Fla. 2d DCA 2016) ; see also Gamble v. State , 685 So. 2d 1310, 1311 (Fla. 2d DCA 1996). The portions of the trial transcript the postconviction court attached to its order summarily denying this ground do not conclusively refute this part of Appellant's second claim. Therefore, we reverse and remand for the p…
Authorities Cited
- Wynn v. State, 591 So. 2d 964 (Fla. 2d DCA 1991)
- Campbell v. State, 616 So. 2d 995 (Fla. 2d DCA 1992)
- State v. Stevens, 616 So. 2d 995 (Fla. 2d DCA 1992)
- Grier v. State, 424 So. 2d 992 (Fla. 2d DCA 1983)
- Villabol v. State, 595 So. 2d 1057 (Fla. 2d DCA 1992)