ROBERT L. BING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert L. Bing appealed the denial of his motion for postconviction relief under Florida Rule 3.850. The appellate court reversed the denial of his third claim of ineffective assistance of counsel due to the trial court's procedural error in refusing to consider his request for appointed counsel, though it affirmed the denial of his other two claims on the merits.
The trial court erred by taking the position that an indigent defendant can never be entitled to appointed counsel in postconviction proceedings. The court reversed the denial of the third claim to allow the trial court to reassess appellant's entitlement to appointed counsel after considering the Graham factors, while affirming the denial of the other two claims as presenting no colorable or justiciable issues.
[1] A trial court's denial of a motion for postconviction relief may be reversed due to procedural error in ruling upon a request for appointed counsel.
[2] While there is no absolute right to appointed counsel in postconviction proceedings, an indigent defendant may be entitled to counsel if the claim presented is colorable.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“While there is no absolute right to the appointment of counsel in postconviction proceedings, our review of the record persuades us that the trial court incorrectly took the position in this case that an indigent defendant can never be entitled to appointed counsel in such proceedings.”
Establishes that although no absolute right exists, the trial court erred in adopting a blanket rule against appointed counsel in all postconviction proceedings.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBing filed a motion for postconviction relief raising three claims, including an allegation that his trial counsel failed to investigate whether Timot…
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PER CURIAM.
This is an appeal from a final order entered after a hearing, denying appellant’s motion for postconviction relief under rule 3.850, Florida Rules of Criminal Procedure. Because of an error in the procedure followed by the court below in ruling upon appellant’s request for appointed counsel to assist him at the hearing on his motion, we reverse for further proceedings on the third claim raised in the motion. We affirm the denial of the other two claims raised in the motion, despite the lack of assistance of counsel at the hearing, because those claims did not present any colorable or justiciable issues for the trial court’s consideration.
While there is no absolute right to the appointment of counsel in postconviction proceedings, our review of the record persuades us that the trial court incorrectly took the position in this case that an indigent defendant can never be entitled to appointed counsel in such proceedings. Here, the third claim of appellant’s motion set forth a colorable claim of ineffective assistance of trial counsel. Appellant’s third claim alleges that trial counsel failed to investigate whether Timothy Hudson, the state’s key witness, had ever previously been convicted of a felony. Appellant alleged that such investigation would have disclosed that the witness was a convicted felon whose credibility was subject to attack on that basis. The transcript of the hearing on the motion shows that appellant may not have had the capacity to understand the legal and practical requirements of meeting his burden of proof at the hearing.
The trial court’s declaration to appellant at the hearing to the effect that he had no right to a court-appointed attorney at such a hearing does not, from the record, appear to have been based upon an evaluation of the factors set forth in Graham v. State, 372 So. 2d 1363 (Fla.1979).
We, therefore, reverse that portion of the order denying appellant’s third claim in order to allow the trial court to reassess, after a consideration of the factors set forth in Graham, appellant’s entitlement to appointed counsel to assist him at an evidentiary hearing on that claim. We affirm in all other respects.
BOOTH and BENTON, JJ„ and SMITH, LARRY, G., Senior Judge, Concur.
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Citator
Cited By
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Wheeler v. State, 807 So. 2d 94 (Fla. 1st DCA 2002)…been made for the first time at an evidentiary hearing, but this should be the exception and not the rule. The few reversals in this category involve serious errors relating to the defendant’s entitlement to counsel. For instance, in Bing v. State, 745 So. 2d 1028 (Fla. 1st DCA 1999), the trial court mistakenly concluded that an indigent defendant can never be entitled to appointed counsel in a postconviction proceeding. Similarly, in Davis v. State, 499 So. 2d 24 (Fla. 4th DCA 1986), the court was concerned…
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Woodward v. State, 992 So. 2d 391 (Fla. 1st DCA 2008)…e case for collateral relief, we affirm the trial court’s denial of relief with respect to those claims. Cf. Henderson, 919 So. 2d at 657 (reversing trial court’s denial of counsel only on color-able or justiciable claims for relief); Bing v. State, 745 So. 2d 1028, 1028-29 (Fla. 1st DCA 1999) (same); Ganote v. State, 916 So. 2d 997, 998-99 (Fla. 2d DCA 2005) (same). Accordingly, we reverse the trial court’s denial of the two claims addressed in this opinion and remand for an evidentiary hearing on those clai…
Authorities Cited
- The Petition of Andrew A. Graham v. State, 372 So. 2d 1363 (Fla. 1979)