KENNETH MOYE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the denial of most postconviction relief claims but vacated and remanded the ineffective assistance of counsel claim regarding the defendant's right to testify because the trial court failed to properly attach or identify the record evidence supporting its denial.
A trial court's denial of an ineffective assistance of counsel claim must be supported by a properly attached document or an evidentiary hearing when the defendant claims counsel prevented him from testifying.
[1] When a trial court denies an ineffective assistance of counsel claim by reference to an attachment, the attachment must be actually included with the order or the trial c…
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Join FLexlaw to unlock all legal intelligenceKenneth Moye sought postconviction relief under Florida Rule of Criminal Procedure 3.850, claiming his defense counsel was ineffective for denying him…
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PALMER, J.
Kenneth Moye appeals the trial court’s order denying his motion seeking postcon-viction relief. See Fla.R.Crim.P. 3.850. The motion raised six claims of error, two of which were afforded an evidentiary hearing. We affirm the trial court’s denial of grounds two through six but vacate and remand this matter to the trial court for further proceedings regarding ground one.
Moye alleged in ground one of his motion that his defense counsel was ineffective for denying him his right to testify. To support this claim, Moye alleged that he had adamantly instructed counsel that he wanted to testify on his own behalf. Although the trial court denied this claim by making reference to an attachment, no document was attached to the court’s order nor did the trial court’s order identify the portion of the record which contained the referenced attachment. Thus, this court is unable to determine whether Moye’s claim of ineffective assistance of counsel is refuted by the attachment. Accordingly, we vacate the trial court’s order and remand the matter to the trial court with instructions to either attach the missing document or to hold an evidentiary hearing if there is insufficient evidence in the record to refute the claim. See Gary v. State, 775 So. 2d 335 (Fla. 2d DCA 2000); Hatten v. State, 698 So. 2d 899 (Fla. 5th DCA 1997); Edwards v. State, 652 So. 2d 1276 (Fla. 5th DCA 1995).
AFFIRMED in part, VACATED in part, and cause REMANDED with instructions.
W. SHARP, and PETERSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Pittman v. State, 814 So. 2d 1257 (Fla. 5th DCA 2002)…order and remand the matter with instructions for the trial court to either attach documents which support its ruling or to hold an evidentiary hearing if there is insuffi- [*1258] dent evidence in the record to refute the claims. See Moye v. State, 773 So. 2d 1277 (Fla. 5th DCA 2000). AFFIRMED in part, VACATED in part, and cause REMANDED with instructions. THOMPSON, C.J., and SHARP, W., J., concur.…
Authorities Cited
- Edwards v. State, 652 So. 2d 1276 (Fla. 5th DCA 1995)
- Hatten v. State, 698 So. 2d 899 (Fla. 5th DCA 1997)
- Gary v. State, 775 So. 2d 335 (Fla. 2d DCA 2000)