GABRIEL FERNANDEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gabriel Fernandez appealed a summary denial of his motion for postconviction relief raising ineffective assistance of counsel claims. The court affirmed the denial as to the first three grounds but reversed and remanded as to two specific claims within the fourth ground concerning trial counsel's failure to object to lack of jury oath and failure to protect the right to an impartial jury.
The court affirmed the denial of the first three grounds of the postconviction motion but reversed and remanded as to parts (D) and (E) of the fourth ground because the state's attachments and references to the record were insufficient to support summary denial, and these claims may be legally sufficient.
[1] A summary denial of postconviction relief is improper when the state's response and the trial court's order do not attach or refer to record excerpts that conclusively re…
[2] Claims of ineffective assistance of counsel based on trial counsel's failure to object to prospective jurors not being sworn in prior to voir dire may be legally sufficie…
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“the state's attachments and references to the record are insufficient to support the trial court's summary denial”
Establishes the standard for when summary denial of postconviction relief is improper due to inadequate record support
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Join FLexlaw to unlock all legal intelligenceFernandez was convicted at trial and filed a postconviction motion raising multiple grounds for relief, including twelve separate ineffective assistan…
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PER CURIAM.
Gabriel Fernandez appeals from an order summarily denying his motion for postconviction relief and the order denying his motion for rehearing. We affirm as to the first three grounds of the motion; however, as to the twelve separately listed claims of ineffective assistance of counsel that comprise appellant’s fourth ground for relief, we reverse and remand as to parts (D) and (E).
The state did not address either claim in the response it filed with the trial court below, and the trial court did not attach any record excerpts in connection with these two claims to its order denying post-conviction relief. However, in its response to this court’s order to show cause, the state either attached or referred to portions of the trial transcript, which it asserts conclusively refute these claims. However, the state’s attachments and references to the record are insufficient to support the trial court’s summary denial. See Hastings v. State, 670 So. 2d 1176 (Fla. 4th DCA 1996).
In part (D) of the fourth ground of his motion, appellant alleged that his trial counsel rendered ineffective assistance in failing to object when the trial court failed to place the prospective jurors under oath prior to voir dire. In part (E), appellant alleged that his trial counsel rendered ineffective assistance in failing to protect his right 'to a fair trial by an impartial jury. On this claim concerning biased jurors, he provides two specific sets of facts. It appears that the grounds raised in parts (D) and (E) may be legally sufficient. See generally Mesidor v. State, 521 So. 2d 333 (Fla. 4th DCA 1988) (reversing denial of motion for postconviction relief based on trial court’s failure to swear in an interpreter). With respect to failure to preserve alleged errors in voir dire procedures, see Baber v. State, 696 So. 2d 490 (Fla. 4th DCA 1997); Powell v. State, 673 So. 2d 119 (Fla. 4th DCA 1996); Williams v. State, 673 So. 2d 960 (Fla. 1st DCA 1996); Gibbs v. State, 604 So. 2d 544 (Fla. 1st DCA 1992).
Accordingly, we reverse and remand for further proceedings as to parts (D) and (E) of appellant’s fourth ground for relief.
AFFIRMED in part, REVERSED in part, and REMANDED.
GUNTHER, STONE and TAYLOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Williams v. State, 673 So. 2d 960 (Fla. 1st DCA 1996)
- Gibbs v. State, 604 So. 2d 544 (Fla. 1st DCA 1992)
- Curt Baber v. State, 696 So. 2d 490 (Fla. 4th DCA 1997)
- Stanley Marsh & Sons, Inc. v. Niagara Distribs., Inc., 670 So. 2d 1176 (Fla. 4th DCA 1996)
- Hastings v. State, 670 So. 2d 1176 (Fla. 4th DCA 1996)
- Powell v. State, 673 So. 2d 119 (Fla. 4th DCA 1996)
- Ghislaine Mesidor v. State, 521 So. 2d 333 (Fla. 4th DCA 1988)
- Gomez v. State, 521 So. 2d 333 (Fla. 4th DCA 1988)