MOSES SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Moses Smith appealed his post-conviction motion for rehearing regarding ineffective assistance of counsel claims in two separate juvenile cases. The court reversed on one claim involving improper adult sentencing on a burglary charge lacking statutory authority, but affirmed the trial court's denial of the other claims.
The trial court erred in summarily denying the claim regarding adult sanctions on the burglary charge in case 92-3135 because burglary did not fall within statutory provisions allowing adult sentencing. However, the trial court properly summarily denied the claim regarding case 92-8707 because those crimes fell within section 39.022(5)(e)3. The trial court also properly denied the failure-to-appeal claim based on credibility findings at the evidentiary hearing.
[1] A trial court errs in summarily denying a claim of ineffective assistance of counsel for failure to object to the imposition of adult sanctions without adhering to statut…
[2] A trial court does not err in summarily denying a claim of ineffective assistance of counsel when the underlying offense falls within statutory provisions for sentencing…
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Join FLexlaw to unlock all legal intelligence“This offense did not fall within the statutory provisions for sentencing a juvenile as an adult.”
Establishes that burglary of a dwelling did not meet statutory criteria for adult sentencing, making the trial court's summary denial error.
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Join FLexlaw to unlock all legal intelligenceSmith was a juvenile charged in two separate cases: case 92-3135 involved burglary of a dwelling brought by information, and case 92-8707 involved sec…
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PER CURIAM.
We grant in part Appellant’s supplemental motion for rehearing, withdraw our earlier opinion, and substitute the following:
In Appellant’s motion for post-conviction relief, he alleged two ineffective assistance of counsel claims. The trial court held an evidentiary hearing on one of the claims, but summarily denied the other claim. We conclude that the trial court erred in summarily denying Appellant’s claim of ineffective assistance of counsel for failure to object to the imposition of adult sanctions without adhering to the criteria of section 39.059, Florida Statutes, and without a predisposition report in case number 92-3135, which the prosecution brought by information charging burglary of a dwelling. This offense did not fall within the statutory provisions for sentencing a juvenile as an adult. § 39.022(5)(e)3, Fla. Stat. (Supp.1992); State v. Berry, 647 So. 2d 830 (Fla.1994); Robinson v. State, 642 So. 2d 1204 (Fla. 4th DCA 1994); see Lunn v. State, 675 So. 2d 648 (Fla. 2d DCA 1996); B.B. v. State, 647 So. 2d 268 (Fla. 4th DCA 1994). Accordingly, we reverse and remand for an evidentiary hearing on this claim.
However, the trial court did not err in summarily denying Appellant’s claim of ineffective assistance of counsel with regard to his separate adjudication and sentencing in case number 92-8707. That separate case concerned the crimes of second degree murder, attempted armed robbery, and burglary, and as such, case number 92-8707 falls within the provisions of section 39.022(5)(e)3. Ritchie v. State, 670 So. 2d 924 (Fla.1996). Accordingly, we affirm on that claim.
We also find that the trial court did not err in denying Appellant’s claim of ineffective assistance of counsel for failure to timely file an appeal. After holding an evidentiary hearing, the trial court made findings of fact as to the credibility of the key witnesses and chose to believe counsel’s testimony that he was not asked to file an appeal on Appellant’s behalf. Since it is within the province of the finder of fact “to rely upon the testimony found by it to be worthy of belief and to reject such testimony found by it to be untrue,” the decision in the instant case was within the province of the trial court. I.R. v. State, 385 So. 2d 686, 687 (Fla. 3d DCA 1980); see Fernandez v. State, 639 So. 2d 658, 659-60 (Fla. 3d DCA 1994).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
GUNTHER, PARIENTE and SHAHOOD, JJ., concur.
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Bowman v. State, 748 So. 2d 1082 (Fla. 4th DCA 2000)…2d 1150, 1150 (Fla. 4th DCA 1993). However, where the trial court makes findings of fact after an evidentiary-hearing on a 3.850 motion, the appellate court cannot substitute its own factual findings for those of the trial court. See Smith v. State, 697 So. 2d 991, 992 (Fla. 4th DCA 1997) (“it is within the province of the finder of fact ‘to rely upon the testimony found by it to be worthy of belief and to reject such testimony found by it to be untrue’ ”) (quoting I.R. v. State, 385 So. 2d 686, 687 (Fla. 3d…
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Demurjian v. State, 727 So. 2d 324 (Fla. 4th DCA 1999)…ject to plenary review. See Rose v. State, 675 So. 2d 567, 571 (Fla.1996). However, where the trial court makes findings of fact after an evidentiary hearing on a rule 3.850 motion, those findings will not be disturbed on appeal. See Smith v. State, 697 So. 2d 991, 992 (Fla. 4th DCA 1997). In essence, the appellate court should defer to the factual findings of the trial court, but can substitute its own judgment to determine if those facts legally constitute a claim for ineffective assistance of counsel. App…
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Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- I.R. and I.R. v. State, 385 So. 2d 686 (Fla. 3d DCA 1980)
- In the Interest of B.B. v. State, 647 So. 2d 268 (Fla. 4th DCA 1994)
- Ritchie v. State, 670 So. 2d 924 (Fla. 1996)
- Lunn v. State, 675 So. 2d 648 (Fla. 2d DCA 1996)
- State v. Fletcher Berry, 647 So. 2d 830 (Fla. 1994)
- Fernandez v. State, 639 So. 2d 658 (Fla. 3d DCA 1994)
- Robinson v. State, 642 So. 2d 1204 (Fla. 4th DCA 1994)