GERALD THOMAS WEBB, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gerald Webb appealed the summary denial of his post-conviction relief motion, challenging his trial counsel's effectiveness on multiple grounds. The court affirmed the denial of most issues but reversed and remanded two issues—ineffective assistance regarding failure to inform him of plea consequences and failure to object to prosecutor's improper bolstering of witness credibility.
The court held that Webb sufficiently alleged ineffective assistance on both issues. The allegations were legally sufficient to require the trial court to either attach record portions conclusively refuting the claims or hold an evidentiary hearing on both issues one and thirteen.
[1] Allegations of ineffective assistance of counsel based on attorney misadvice regarding plea offers are legally sufficient to require the trial court to either attach reco…
[2] In appeals from summary denials of post-conviction relief, review is limited to whether the record conclusively shows the appellant is not entitled to relief and whether…
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Join FLexlaw to unlock all legal intelligence“Webb sufficiently alleged that had it not been for his attorney's misadvice, he would have received a lesser sentence than the one imposed. We conclude that the allegations are legally sufficient to require the trial court to either attach portions of the record conclusively refuting the claim or hold an evidentiary hearing.”
Establishes the standard for legal sufficiency of ineffective assistance claims in summary post-conviction proceedings and requires either record review or hearing on issue one.
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Join FLexlaw to unlock all legal intelligenceWebb was charged with lewd and lascivious assaults that allegedly occurred years earlier. The case rested entirely on the victim's testimony with no p…
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Webb appeals from the trial court’s summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We ordered the state to respond to issues one and thirteen in Webb’s motion, but found the others correctly determined by the trial court.
In issue one, Webb argued his trial counsel was ineffective for failing to correctly inform him of the consequences of standing trial and the length of possible sentences, which caused him to reject a favorable plea offer.
The state responded that Webb waived this issue because he did not properly plead this point in his initial brief, but merely referred to it in his motion: We do not think Duest v. Dugger, 555 So. 2d 849 (Fla.1990), is on point regarding waiver, as it involved an order denying a post-conviction motion after an evidentiary hearing. Florida Rule of Appellate Procedure 9.140(j) provides that no briefs are required in appeals from orders denying post-conviction relief without an evidentiary hearing. Review of summary proceedings is limited to the record and the issue is whether the record conclusively shows the appellant is not entitled to relief and whether the claims are facially invalid. See Peede v. State, 748 So. 2d 253 (Fla.1999).
In this case, Webb sufficiently alleged that had it not been for his attorney’s misadvice, he would have received a lesser sentence than the one imposed.
We conclude that the allegations are legally sufficient to require the trial court to either attach portions of the record conclusively refuting the claim or hold an evidentiary hearing. In issue thirteen, Webb claimed his trial counsel was ineffective for failing to object to comments made by the prosecutor which improperly bolstered the state’s witness.. The state attached to its response the entire closing argument and claims the trial court correctly denied Webb’s claim, after reviewing the closing comments and considering the totality of the argument.
However, the trial court did not attach the entire closing argument and the court’s failure to do so cannot be cured by the state. See Core v. State, 685 So. 2d 91 (Fla. 4th DCA), rev. denied, 695 So. 2d 699 (Fla.1997); Worthington v. State, 667 So. 2d 1023 (Fla. 5th DCA 1996).
It appears from the portions of the closing arguments attached by the trial court that the prosecutor repeated several times that the victim was telling the truth. That could be highly prejudicial because the proof against Webb rested entirely on the victim’s testimony and similar fact evidence. The charged lewd and lascivious assaults had occurred years earlier, and there was no physical evidence to support the charges. Thus, Webb has stated a facially sufficient claim which requires the trial court to either attach portions of the record conclusively refuting the claim, or hold an evidentiary hearing.
Accordingly, we affirm as to issues two through twelve, and fourteen through twenty, but reverse and remand as to issues one and thirteen for the purposes stated above.
AFFIRMED in part, REVERSED and REMANDED in part.
COBB and HARRIS, JJ., concur.
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Ward v. State, 19 So. 3d 1060 (Fla. 5th DCA 2009)…nted to the trial court, however, because Appellant abandoned these issues by not addressing them in his brief. Austin v. State, 968 So. 2d 1049, 1049 (Fla. 5th DCA 2007). We are aware of the intra-district conflict between Austin and Webb v. State, 757 So. 2d 608 (Fla. 5th DCA 2000), on this point. We approve Austin and recede from Webb to the extent of such conflict. AFFIRMED. MONACO, C.J., GRIFFIN, SAWAYA, PALMER, ORFINGER, LAWSON, COHEN and JACOBUS, JJ., concur. TORPY, J., concurs, and concurs speci…
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Randolph v. State, 789 So. 2d 1080 (Fla. 1st DCA 2001)…e order, and remand for the purpose of giving the trial court the opportunity to either attach another portion of the record showing that Randolph is not entitled to relief on this issue, or to hold an evidentia-ry hearing. See, e.g., Webb v. State, 757 So. 2d 608 (Fla. 5th DCA 2000). If the record is silent on this matter, Randolph is entitled to reconsideration of the minimum-mandatory portion of his sentence under Hudson. See, e.g., Jones v. State, 760 So. 2d 1066 (Fla. 3d DCA 2000) (reversing denial of po…
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Dixon v. State, 888 So. 2d 141 (Fla. 1st DCA 2004)…f counsel. See, e.g., Travaglia v. State, 864 So. 2d 1221 (Fla. 5th DCA 2004); Clark v. State, 855 So. 2d 691 (Fla. 2d DCA 2003); Tidwell v. State, 844 So. 2d 701 (Fla. 1st DCA 2003); Ash v. State, 767 So. 2d 1260 (Fla. 1st DCA 2000); Webb v. State, 757 So. 2d 608 (Fla. 5th DCA 2000). See also Cottle v. State, 733 So. 2d 963 (Fla.1999). Nothing in the trial court’s order or the attachments to it conclusively refutes this claim. Indeed, the transcripts of the plea and sentencing proceedings would appear to con…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Peede v. State, 748 So. 2d 253 (Fla. 1999)
- Duest v. Dugger, 555 So. 2d 849 (Fla. 1990)
- Worthington v. State, 667 So. 2d 1023 (Fla. 5th DCA 1996)
- Staggs v. State, 667 So. 2d 1023 (Fla. 5th DCA 1996)
- Core v. State, 685 So. 2d 91 (Fla. 4th DCA 1997)