KEITH GERALD TOBEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the trial court's summary denial of Tobey's postconviction motion for failing to meet Rule 3.850 requirements, finding the second motion was not identical to the first and met the informational requirements, requiring consideration on the merits.
A postconviction motion that meets Rule 3.850 informational requirements cannot be summarily denied as identical to a previously denied motion without substantive review.
[1] A postconviction motion that meets Rule 3.850 informational requirements cannot be summarily denied merely because it contains the same claims as a previously denied moti…
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Join FLexlaw to unlock all legal intelligence“It accordingly may only be summarily denied if it is conclusively refuted by record attachments.”
The court explaining that Tobey's ineffective assistance claim regarding voluntary intoxication defense is facially sufficient and cannot be summarily denied without record evidence refuting it.
Tobey filed two postconviction relief motions under Florida Rule of Criminal Procedure 3.850. The trial court denied both motions, claiming the second…
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PER CURIAM.
Keith Tobey appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Tobey’s initial motion was denied by the trial court because it did not meet the informational requirements of rule 3.850. Tobey filed another motion which contained the same claims as the first but also included a statement that no other motions had been filed. The trial court again denied the motion for failure to meet the informational requirements of rule 3.850, stating that it was identical to the previously denied motion. We disagree.
Tobey’s second motion was not identical to the first. After reviewing it, we find that it meets the informational requirements of rule 3.850. We, therefore, reverse and remand in order for the trial court to consider Tobey’s motion on the merits. In order to provide some guidance on remand, we point out that Tobey’s claim that counsel was ineffective for failing to advise him of the defense of voluntary intoxication is facially sufficient based on the allegations contained in the motion. See, e.g., Young v. State, 661 So. 2d 406 (Fla. 1st DCA 1995). It accordingly may only be summarily denied if it is conclusively refuted by record attachments.
Reversed and remanded.
CAMPBELL, A.C.J., and ALTENBERND and WHATLEY, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Young v. State, 661 So. 2d 406 (Fla. 1st DCA 1995)
- Swain v. Bernie Howell, 661 So. 2d 406 (Fla. 1st DCA 1995)