FRANKLIN D. GREESON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Greeson appealed the denial of his Rule 3.850 postconviction motion claiming ineffective assistance of counsel. The appellate court affirmed the trial court's rejection of two grounds but reversed as to two others, finding the claims facially sufficient and not conclusively refuted by the record.
The court held that the two ineffective assistance claims were facially sufficient under the three-part test established in Highsmith v. State and were not conclusively refuted by any portion of the record attached to the trial court's order. Therefore, the denial order was reversed as to those claims and remanded for further proceedings.
[1] A motion for postconviction relief alleging ineffective assistance of counsel for failure to investigate and call alibi witnesses is facially sufficient if it identifies…
[2] A claim of ineffective assistance of counsel based on the failure to file a motion to dismiss after the speedy trial time has run may be facially sufficient.
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Join FLexlaw to unlock all legal intelligence“In cases involving claims of ineffective assistance of counsel based on counsel's alleged failure to investigate and to interview witnesses, a facially sufficient motion must include the following allegations: (1) the identity of the prospective witnesses; (2) the substance of the witnesses' testimony; and (3) an explanation as to how the omission of this evidence prejudiced the outcome of the trial.”
Establishes the three-part test from Highsmith v. State for evaluating ineffective assistance claims based on failure to investigate witnesses
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Join FLexlaw to unlock all legal intelligenceGreeson filed a postconviction motion under Florida Rule of Criminal Procedure 3.850 raising four grounds of ineffective assistance of counsel. Two gr…
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WEBSTER, Judge.
Appellant seeks review of an order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court ruled correctly as to two of the four grounds raised. However, the remaining two grounds presented facially sufficient claims which were not shown conclusively to be without merit by any portion of the record attached to the order. Accordingly, as to those two grounds, we are constrained to reverse.
Appellant claimed that his trial counsel had been ineffective because he failed to investigate and call at trial several named alibi witnesses. In Highsmith v. State, 617 So. 2d 825, 826 (Fla. 1st DCA 1993), we said:
In cases involving claims of ineffective assistance of counsel based on counsel’s alleged failure to investigate and to interview witnesses, a facially sufficient motion must include the following allegations: (1) the identity of the prospective witnesses; (2) the substance of the witnesses’ testimony; and (3) an explanation as to how the omission of this evidence prejudiced the outcome of the trial.
The allegations made in appellant’s motion met those requirements, and were not refuted by attachment to the order of any portion of the record.
Appellant also claimed that trial counsel had been ineffective because he failed to file a motion to dismiss after the speedy trial time had run. The allegations supporting this claim were, likewise, facially sufficient. See, e.g., Pippin v. State, 626 So. 2d 1091 (Fla. 1st DCA 1993). The trial court did not address this claim at all in its order. The trial court’s order is reversed as to the two ineffective assistance claims addressed in this opinion and, as to those claims only, remanded for further proceedings. On remand, the trial court shall either attach to an order again denying relief those portions of the record clearly establishing that appellant is entitled to no relief, or hold an evidentiary hearing. In all other respects, the trial court’s order is affirmed.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.
BARFIELD, C.J., and KAHN, J., concur.
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Citator
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GEE v. State, 13 So. 3d 68 (Fla. 1st DCA 2009)…to follow the proper procedure. See Gee v. State, 954 So. 2d 83 (Fla. 1st DCA 2007). We conclude the allegations are sufficient to state a legally sufficient claim. See e.g. Brown v. State, 829 So. 2d 975, 976 (Fla. 1st DCA 2002); Greeson v. State, 729 So. 2d 397 (Fla. 1st DCA 1998). Because the trial court did not refute this claim with record attachments, the trial court’s summary denial of the appellant’s ineffective assistance of counsel claim for failing to file a demand for speedy trial is reversed and…
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Brown v. State, 829 So. 2d 975 (Fla. 1st DCA 2002)…unsel’s omission because the trial court denied his writ of prohibition on the basis that his counsel had not filed a demand for speedy trial. We conclude the allegations are sufficient to state a legally sufficient claim. See e.g. Greeson v. State, 729 So. 2d 397 (Fla. 1st DCA 1998); Toliver v. State, 652 So. 2d 1291 (Fla. 1st DCA 1995); Pippin v. State, 626 So. 2d 1091 (Fla. 1st DCA 1993). Because the trial court did not refute this claim with record attachments, the trial court’s summary denial of the appe…
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Bart A. Greenway v. State, 823 So. 2d 206 (Fla. 1st DCA 2002)…motion specified the substance of Mr. Gustafson’s testimony, how it was relevant, and the prejudice allegedly caused by defense counsel’s failure to adduce this evidence. See Ash v. State, 767 So. 2d 1260, 1261 (Fla. 1st DCA 2000); Greeson v. State, 729 So. 2d 397, 397 (Fla. 1st DCA 1998); see generally Highsmith v. State, 617 So. 2d 825, 826 (Fla. 1st DCA 1993). The motion further alleged that defense counsel was aware of the existence of this witness and that Mr. Gustafson was available to testify at trial.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Highsmith v. State, 617 So. 2d 825 (Fla. 1st DCA 1993)
- Haley Bascom Pippin v. State, 626 So. 2d 1091 (Fla. 1st DCA 1993)