JOE ROBERT BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brown appeals the summary denial of his post-conviction motion alleging ineffective assistance of counsel. The appellate court affirmed in part regarding the jury selection claim but reversed regarding Brown's claim that he was prevented from testifying, requiring the trial court to either attach record portions to its order or hold an evidentiary hearing.
The court reversed the denial of Brown's claim regarding his testimony because the trial court order lacked attachments to the record conclusively showing he was entitled to no relief. The court affirmed the denial of Brown's jury selection claim because such allegations of ineffective assistance cannot be used to circumvent the rule that post-conviction proceedings cannot serve as a second appeal.
[1] Reversal is required when a trial court denies a post-conviction motion without attaching the portions of the record that conclusively demonstrate the movant is not entit…
[2] A post-conviction motion cannot be used to circumvent the rule that post-conviction proceedings do not serve as a second appeal.
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Join FLexlaw to unlock all legal intelligence“where neither the state's response nor the trial court's order denying appellant's motion includes the portion of the record cited by the state in support of its factual allegations, reversal is required for attachment of the record conclusively demonstrating that appellant is not entitled to relief, or for an evidentiary hearing on the issue”
Establishes the procedural requirement that trial courts must attach record portions to orders denying post-conviction motions or provide an evidentiary hearing
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Join FLexlaw to unlock all legal intelligenceBrown was convicted by jury of trafficking in cocaine committed on or before September 10, 1992. He was sentenced as a habitual offender to twenty yea…
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PER CURIAM.
Joe Robert Brown (Brown) appeals the summary denial of his first motion for post-eonviction relief, filed on July 28, 1995, pursuant to Florida Rule of Criminal Procedure 3.850. Brown alleges ineffective assistance of counsel. We affirm in part, and reverse in part.
A jury convicted Brown of trafficking in cocaine; this crime was committed on or before September 10,1992. Brown was sentenced as an habitual offender to twenty years in prison, including a three-year mandatory minimum sentence, and to fines. This court affirmed per curiam. Brown v. State., 638 So. 2d 939 (Fla. 1st DCA 1994).
Brown alleges in the instant rule 3.850 motion that he was prevented from testifying to his prejudice. The State, in its response to the court’s order to show cause, provided facts with record citations which, if true, would refute Brown’s claim. Neither the State nor the court however attached the relevant portions of the record. We have held that, where neither the state’s response nor the trial court’s order denying appellant’s motion includes the portion of the record cited by the state in support of its factual allegations, reversal is required for attachment of the record conclusively demonstrating that appellant is not entitled to relief, or for an evidentiary hearing on the issue. Hubbard v. State, 662 So. 2d 746, 746 (Fla. 1st DCA 1995); cf. Bland v. State, 563 So. 2d 794 (Fla. 1st DCA 1990) (holding that, where the transcript is a part of the record before the appellate court and is relied upon by both the appellant and appellee, the trial court’s failure to attach to its order the portions of the record relied upon for denial of appellant’s rule 3.850 motion for postconviction relief is not reversible error). We consequently reverse because the order under review lacks attachments conclusively showing Brown is entitled to no relief and because the tran script is not part of the record before us. We agree with the observation of our sister court:
The growing practice of incorporating state responses into orders denying post-conviction motions is not [a] substitute for the record attachments necessary in many cases for the trial courts to be affirmed. If trial judges want prosecutors to play a meaningful role in the summary denial of postconviction motions, they should direct the state to assemble the record which refutes a claim, and attach these documents to its responses.
Flores v. State, 662 So. 2d 1350, 1352 (Fla. 2d DCA 1995).
The second issue Brown raises, that his jury was selected in a biased way and that his counsel was ineffective for failing to raise this, is barred. King v. State, 597 So. 2d 780, 782 (Fla.1992) (“[ajllegations of ineffective assistance cannot be used to circumvent the rule that postconviction proceedings cannot serve as a second appeal”). We therefore affirm the denial of relief on this claim.
We accordingly affirm in part, reverse in part, and remand for either attachment of those portions of the record conclusively showing that Brown is entitled to no relief, or for an evidentiary hearing.
MINER, WEBSTER and LAWRENCE, JJ., concur.
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Betts v. State, 792 So. 2d 589 (Fla. 1st DCA 2001)…ferenced pages. Accordingly, as to Ground Twelve only, we reverse the order and remand either for complete attachments conclusively demonstrating that Appellant is not entitled to relief, or for an evidentiary hearing. Rule 3.850(d); Brown v. State, 689 So. 2d 1287 (Fla. 1st DCA 1997); Hubbard v. State, 662 So. 2d 746 (Fla. 1st DCA 1995). The findings in the order are AFFIRMED as to Grounds One through Eleven, and Thirteen and Fourteen; and REVERSED and REMANDED as to Ground Twelve for attachments or an evi-d…
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MacOn v. State, 751 So. 2d 142 (Fla. 1st DCA 2000)…al court to either attach portions of the record that would conclusively support its determination that Appellant is not entitled to relief on his [*143] claims of ineffective assistance of counsel, or conduct an evidentiary hearing. Brown v. State, 689 So. 2d 1287 (Fla. 1st DCA 1997). REVERSED and REMANDED. BOOTH, MINER and KAHN, JJ., CONCUR.…
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Martin v. State, 729 So. 2d 1010 (Fla. 1st DCA 1999)…l court summarily denied Martin’s 3.850 motion, but failed to attach any record evidence that conclusively refutes his allegations that he was improperly denied jail time credit. See Odum v. State, 700 So. 2d 388 (Fla. 1st DCA 1997); Brown v. State, 689 So. 2d 1287 (Fla. 1st DCA 1997). Accordingly, we reverse the trial court’s order and remand for attachment of record evidence [*1011] conclusively refuting his allegations or for an evidentiary hearing. ERVIN, BOOTH and BENTON, JJ., CONCUR.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Flores v. State, 662 So. 2d 1350 (Fla. 2d DCA 1995)
- Bland v. State, 563 So. 2d 794 (Fla. 1st DCA 1990)
- Hubbard v. State, 662 So. 2d 746 (Fla. 1st DCA 1995)
- Amos Lee King, Jr. v. State, 597 So. 2d 780 (Fla. 1992)