MICHAEL ETHRIDGE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Ethridge appeals a summary denial of his post-conviction motion for ineffective assistance of counsel and other claims. The Fourth District Court of Appeal affirmed the denial of most claims but reversed as to the ineffective assistance claim regarding a voluntary intoxication defense, remanding for an evidentiary hearing.
The court affirmed the summary denial of grounds one, two, four, and five, but reversed the summary denial of ground three concerning ineffective assistance for failure to present a voluntary intoxication defense. The court remanded for either an evidentiary hearing or attachment of record portions that conclusively refute the claim.
[1] Issues that were or could have been raised on direct appeal are not cognizable in a motion for postconviction relief.
[2] Proceedings under rule 3.850 are not a substitute for a direct appeal, nor can they be used to relitigate issues under a different argument.
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Join FLexlaw to unlock all legal intelligence“issues which either were or could have been raised upon direct appeal are not cognizable through collateral attack”
Establishes that grounds four and five cannot be raised in post-conviction relief because they should have been raised on direct appeal
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Join FLexlaw to unlock all legal intelligenceEthridge pleaded guilty to burglary and grand theft and was sentenced to ten years as a habitual felony offender. His direct appeal was affirmed. He t…
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PER CURIAM.
Appellant Michael Ethridge appeals a final order which summarily denied his motion for post conviction relief filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. We affirm in part and reverse in part.
Appellant pled guilty to burglary and grand theft and was sentenced to a total term.of ten years in prison as a habitual felony offender. He filed a direct appeal, resulting in the affirmance of his adjudications and sentences in Etheridge v. State, 730 So. 2d 692 (Fla. 4th DCA 1999). He then filed a motion for post conviction relief in which he asserted three claims of ineffective assistance of trial counsel, and also argued that he was denied a right to be present during side bar conferences incident to his pleas, and that the trial court erred in failing to render specific performance of his plea agreement. The trial court summarily denied all grounds asserted based on the state’s response and record attachments, in the final order now on appeal.
We agree with the summary denial of appellant’s grounds four and five because they raise claims which either were raised and rejected on direct appeal, or should have been raised on direct appeal, such that they cannot be asserted in this motion for post conviction relief. See Smith v. State, 445 So. 2d 323, 325 (Fla. 1983) (issues which either were or could have been raised upon direct appeal are not cognizable through collateral attack), cert. denied, 467 U.S. 1220, 104 S.Ct. 2671, 81 L.Ed.2d 375 (1984); Torres-Arboleda v. Dugger, 636 So. 2d 1321, 1323 (Fla.1994) (proceedings under rule 3.850 are not to be used as a second appeal; nor is it proper to use a different argument to relitigate the same issue). See also Medina v. State, 573 So. 2d 293, 295 (Fla.1990).
On the claims of ineffective assistance of counsel, we agree with the trial court’s summary denial of grounds one and two based on the state’s response and record attachments. However, we disagree with the trial. court as to ground three, in which appellant alleged ineffective assistance of his trial counsel for failure to present a defense of voluntary intoxication, and for advising him that he had no potential defense on this ground, leading him to enter his pleas.
The fact that appellant advised the court prior to his sentencing that he had a drug and alcohol problem does not preclude a claim that trial counsel nonetheless rendered ineffective assistance of counsel in allegedly advising him that he had no potential voluntary intoxication defense to the crimes charged. The state argues that there was insufficient evidence of voluntary intoxication, but this claim is wholly without record support. The state concedes that the plea colloquy does not refute appellant’s claim on this ground because one cannot voluntarily waive a defense if one has been told it is not available in that case.
The state also argues that trial counsel’s failure to present a voluntary intoxication defense may have been a tactical decision. However, a trial court’s find ing that some action or inaction by defense counsel was tactical is generally improper without an evidentiary hearing. Griggs v. State, 744 So. 2d 1145 (Fla. 4th DCA 1999); Guisasola v. State, 667 So. 2d 248, 249 (Fla. 1st DCA 1995) (reversing summary denial of claim that counsel was ineffective in investigation and presentation of voluntary intoxication defense).
We affirm as to the trial court’s summary denial of grounds one, two, four and five, but reverse as to ground three, and remand for either an evidentiary hearing or the attachment of portions of the record which conclusively refute appellant’s claim.
GUNTHER, STONE and POLEN, JJ., concur.
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Winans v. Jed P. Weber, M.D., 979 So. 2d 269 (Fla. 2d DCA 2007)…p’t of Children & Families, 822 So. 2d 527, 530 (Fla. 4th DCA 2002) (holding that there could be no waiver of grandparents’ right to seek adoption of grandchildren when DCF had misled the grandparents concerning their rights); cf. Ethridge v. State, 766 So. 2d 413, 414 (Fla. 4th DCA 2000) (holding that defendant could not have been found to have waived right to assert a specific defense when he had been specifically told that the defense was not available). In this case, the trial court properly found that M…
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Diansky Rouzard v. State, 952 So. 2d 1290 (Fla. 4th DCA 2007)…DCA 2004). Here, the State argues appellant waived this issue when he entered the plea. However, a defendant cannot voluntarily waive defenses of which he is not informed. See Wilson v. State, 871 So. 2d 298 (Fla. 1st DCA 2004); Ethridge v. State, 766 So. 2d 413, 414 (Fla. 4th DCA 2000). We also conclude that appellant’s amended motion was timely filed within two years of his conviction becoming final and that his claim is not based on newly-discovered evidence. See Small v. State, 941 So. 2d 555 (Fla. 1st…
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Jacobson v. State, 171 So. 3d 188 (Fla. 4th DCA 2015)…naware of the defense and can establish that a reasonable probability exists that he would not have entered the plea if properly advised. See Montero, 996 So. 2d at 890; Rouzard v. State, 952 So. 2d 1290, 1292 (Fla. 4th DCA 2007); Ethridge v. State, 766 So. 2d 413, 414 (Fla. 4th DCA 2000). In ground six, appellant alleged counsel failed to advise him that he could assert an insanity defense. He alleged that, while counsel filed a notice of intent to rely on an insanity defense, she did not advise him of this…
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
- Medina v. State, 573 So. 2d 293 (Fla. 1990)
- Torres-Arboleda v. Dugger, 636 So. 2d 1321 (Fla. 1994)
- Smith v. State, 445 So. 2d 323 (Fla. 1983)
- Gilbert v. South Carolina, 467 U.S. 1220 (U.S. 1984)
- Guisasola v. State, 667 So. 2d 248 (Fla. 1st DCA 1995)
- Tauric Lamar Griggs v. State, 744 So. 2d 1145 (Fla. 4th DCA 1999)