MICHAEL REID, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed denial of post-conviction relief motion for ineffective assistance of counsel where defendant alleged counsel closed defense case without informing him of his right to testify, holding the motion was not successive because prior motions raised only sentencing issues under a different rule.
A post-conviction relief motion alleging ineffective assistance of counsel for failing to inform defendant of his right to testify is not successive merely because prior motions were filed under a different rule and raised only sentencing issues.
[1] A post-conviction relief motion alleging ineffective assistance of counsel is not successive when prior motions were filed under a different procedural rule and raised di…
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Join FLexlaw to unlock all legal intelligenceAppellant filed previous post-conviction motions under Rule 3.800 raising only sentencing issues, which the trial court treated as Rule 3.850 motions.…
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PER CURIAM.
In his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, appellant alleged ineffective assistance of counsel, in that counsel closed the defense case at trial without informing him of his right to testify or to waive that right. The trial court denied this motion as successive. The court ruled that appellant should have raised the claim of ineffective assistance in the motions for post-conviction relief he had previously filed. We disagree.
Each of appellant’s previous motions was filed pursuant to Rule 3 .800 rather than rule 3.850, Even though the court treated those motions as having been filed under rule 3.850, appellant raised only sentencing issues in those previous motions. Because of the disparate nature of the claims, and because of the unique circumstance that the court considered each of the previous motions as having been filed under rule 3.850, even though appellant filed them under rule 3.800, the present motion should not be considered successive. See Williams v. State, 685 So. 2d 1317 (Fla. 2d DCA 1996), and Kiser v. State, 649 So. 2d 333 (Fla. 1st DCA 1995).
REVERSED and REMANDED for further proceedings.
JOANOS and KAHN, JJ., concur. DAVIS, J., concurs in result.
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Orosco v. State, 730 So. 2d 815 (Fla. 2d DCA 1999)…. Unlike Orosco’s current rule 3.850 motion, his prior motion did not raise any sentencing issues. We therefore conclude that Orosco is not barred from raising this sentencing issue by virtue of his prior rule 3.850 motion. See, e.g., Reid v. State, 724 So. 2d 127 (Fla. 1st DCA 1998) (holding rule 3.850 motion alleging ineffective assistance of counsel was not successive where previous motions filed pursuant to rule 3.800, but treated as rule 3.850 motions, raised only sentencing issues); Kelly v. State, 712…
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Donovan Casey Odom v. State, 792 So. 2d 1238 (Fla. 1st DCA 2001)…e of intent to seek such sentencing. Thus, the earlier 3.800 motion raised an issue which is substantially dissimilar from the issues raised in the motion under review, and thus, this second motion cannot be said to be successive. See Reid v. State, 724 So. 2d 127 (Fla. 1st DCA 1998). The lower court did consider the merits of appellant’s 3.850 motion and found that the record refuted appellant’s claims. One of those claims, stated in Issue II, is that he was incorrectly advised that he could be given a habi…
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Beck v. State, 798 So. 2d 798 (Fla. 4th DCA 2001)…PER CURIAM. Affirmed, without prejudice to raise his claims in a properly filed motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. See Reid v. Slate, 724 So. 2d 127 (Fla. 1st DCA 1998) (holding that a rule 3.850 motion could not be considered successive where previous motions were filed pursuant to rule governing correction of sentences pursuant to 3.800). POLEN, C.J., KLEIN and GROSS, 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
- Gelco Corp. v. Escambia Cnty., 649 So. 2d 333 (Fla. 1st DCA 1995)
- Williams v. State, 685 So. 2d 1317 (Fla. 2d DCA 1996)