HECTOR PENA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hector Pena appealed the denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, claiming his trial counsel was unprepared and failed to investigate the case. The court reversed in part and remanded, finding that Pena's allegations regarding counsel's inadequate preparation were not conclusively refuted by the record and required further consideration by the trial court.
Three of Pena's issues were not conclusively refuted by the record and must be reconsidered by the trial court. The trial court must either determine without an evidentiary hearing that counsel's performance was adequate or that any inadequacy did not prejudice Pena (with supporting documentation), or must conduct an evidentiary hearing.
[1] A claim of ineffective assistance of counsel based on the failure to investigate and call exculpatory witnesses requires an evidentiary hearing unless the motion is concl…
[2] When a defendant's theory of defense relies on the credibility of proposed exculpatory witnesses whose testimony conflicts with state witnesses, an evidentiary hearing is…
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Join FLexlaw to unlock all legal intelligence“The appellate record shows that Pena's trial counsel was adamant in his representations to the trial court that he had not obtained witnesses and had not investigated the case.”
Establishes the factual foundation for Pena's claim of inadequate preparation, based on counsel's own admissions to the trial court.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePena's trial counsel was retained eight months before trial but admitted to the trial court that he had not obtained witnesses and had not investigate…
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PER CURIAM.
Hector Pena appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because Pena presented three issues that are not conclusively refuted by the record, we reverse as to these issues. We affirm the trial court’s order in all other respects.
Pena alleges that his trial counsel did not investigate his case and was unprepared for the trial. Pena maintains that the lack of preparation resulted in the defense witnesses identified by Pena not being called to testify and in exculpatory evidence not being admitted into evidence.
According to Pena, trial counsel admitted that he was unprepared and unsuccessfully sought a continuance. To assist in the resolution of these issues, this court has taken judicial notice of the court records of Pena’s direct appeal. See Bunger v. State, 687 So. 2d 868 (Fla. 2d DCA 1997). The appellate record shows that Pena’s trial counsel was adamant in his representations to the trial court that he had not obtained witnesses and had not investigated the case.
The trial court addressed the issues by-stating that counsel unsuccessfully sought a continuance and that the denial of the continuance should have been addressed on appeal. However, this is an issue for postconviction relief rather than an issue for direct appeal because counsel, having been retained eight months prior to the trial, apparently failed to use this time to investigate Pena’s case and prepare for the trial. Consequently, the denial of the continuance was proper. However, the adequacy of trial counsel’s performance and its effect on the outcome of the trial must be reconsidered by the trial court. If the trial court determines without an evidentiary hearing that counsel’s performance was adequate or that counsel’s inadequacy did not prejudice Pena, it must attach the documents from the court file that support its conclusions to the order denying relief. Otherwise, the trial court must conduct an evidentiary hearing on Pena’s issues.
Affirmed in part, reversed in part, and remanded.
CAMPBELL, A.C.J., and BLUE and WHATLEY, JJ., Concur.
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Citator
Cited By
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Brennan v. State, 789 So. 2d 418 (Fla. 2d DCA 2001)…ate the facts developed by counsel to support it and it thus fails to refute Brennan’s claim. An attorney may be ineffective for failing to investigate the facts surrounding an offense and for failing to adequately prepare for trial. Pena v. State, 773 So. 2d 1184 (Fla. 2d DCA 2000) (remanding for determination of whether counsel was ineffective for failing to investigate and prepare for trial). Brennan’s allegation that his counsel failed to develop the facts demonstrating that he made an unequivocal request…
Authorities Cited
- Bunger v. State, 687 So. 2d 868 (Fla. 2d DCA 1997)