LANCE POWELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in denying an evidentiary hearing on one point of post-conviction relief, but correctly denied the others.
[1] A motion for post-conviction relief may be denied without an evidentiary hearing if all points raised are conclusively refuted by the record.
[2] An allegation of ineffective assistance of counsel is not conclusively refuted by the record when the record contains evasive testimony regarding a key factual issue.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of drug trafficking and conspiracy. He sought post-conviction relief, alleging ineffective assistance of counsel for failing t…
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PER CURIAM.
The appellant filed a motion for post-conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure, raising thirteen points for relief. The state responded, attaching portions of the record which it claimed supported summary denial of the motion. The trial court denied the motion without an evidentiary hearing, attaching the state’s response to its order. We find that all but one of the points raised by appellant were conclusively refuted by the record attachments. As to the second point, we reverse and remand for an evidentiary hearing on the issue, or attachment of portions of the record refuting the point.
Appellant was convicted of trafficking in cocaine and conspiracy to traffic in cocaine. His defense to the charges was entrapment. Appellant argued in point two ineffective assistance of counsel in failing to recall two officers as defense witnesses who would have testified that the confidential informant was paid a contingency fee.
In response, the state noted that another officer and the informant were questioned about the informant’s method of payment, and both denied payment on a contingency basis. However, their testimony was very evasive, and the informant had previously testified that he would receive ten percent of the cash value of the drugs involved in appellant’s case. Therefore, we cannot conclude from the record attachments that appellant’s allegation of ineffective assistance of counsel stands refuted. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Knight v. State, 394 So. 2d 997 (Fla.1981).
We therefore reverse and remand with directions to hold an evidentiary hearing on the single claim of ineffectiveness of counsel in failing to recall the officers to testify regarding the informant’s fee arrangement, or to attach portions of the record which refute this claim. Reid v. State, 682 So. 2d 194 (Fla. 4th DCA 1996). We affirm as to all other points raised.
GUNTHER, C.J., and WARNER and SHAHOOD, JJ., concur.
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Citator
Cited By
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Powell v. State, 729 So. 2d 983 (Fla. 4th DCA 1999)…e filed a motion for post-conviction relief which the trial court summarily denied in 1995. This court found that the record attachments conclusively refuted all but one of the points, and we reversed for an evidentiary hearing. See Powell v. State, 688 So. 2d 1019 (Fla. 4th DCA 1997). After remand, appellant filed an amended motion for postconviction relief, alleging for the first time that the trial court erred by using the standard jury instruction on entrapment, which this court held to be reversible error…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- Lopez v. Lopez, 682 So. 2d 194 (Fla. 3d DCA 1996)