GARY SIMO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in summarily denying two claims of ineffective assistance of counsel, requiring an evidentiary hearing.
Appellant was convicted of armed robbery and appealed, with his convictions affirmed. He then filed a motion for post-conviction relief alleging ineff…
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PER CURIAM.
This is an appeal by Gary Simo from a trial court order which summarily denied his motion for post-conviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm in part and reverse and remand in part.
Appellant was convicted of two counts of armed robbery, for which he received concurrent life sentences. He appealed to this court, which affirmed his convictions and sentences in Simo v. State, 676 So. 2d 431 (Fla. 4th DCA 1996).
Appellant filed a motion for post-conviction relief alleging five claims of ineffective assistance of his trial counsel. At issue here, based on appellant’s brief, are grounds one and three. In ground one, appellant alleged ineffective assistance of his trial counsel for failing to object and in waiving objection to the presence of a sleeping juror. Ground three is a claim of ineffective assistance of counsel in failing to accurately advise appellant of the consequences of testifying in his own defense.
We find both claims legally and factually sufficient, and that the trial court erred in summarily denying them based on the State’s response and record attachments. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Evans v. State, 737 So. 2d 1167 (Fla. 2d DCA 1999). See also Oisorio v. State, 676 So. 2d 1363 (Fla.1996); Britton v. State, 604 So. 2d 1288, 1290 (Fla. 2d DCA 1992).
Accordingly, we reverse and remand the trial court’s summary denial of grounds one and three of the motion for post-conviction relief for an evidentiary hearing or record attachments which conclusively refute these claims of ineffective assistance of trial counsel, and affirm as to the other grounds.
WARNER, FARMER and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Reynolds v. State, 99 So. 3d 459 (Fla. 2012)…with regard to trial counsel waiving objection to the removal of the juror, however, is a separate claim. In Simo v. State, the Fourth District stated that trial counsel may be ineffective for “waiving objection to the presence of a sleeping juror.” 790 So. 2d 1190, 1191 (Fla. 4th DCA 2001) (holding the trial court erred in summarily denying the claim of ineffective assistance for “failing to object and in waiving objection to the presence of a sleeping juror”); see also McGraw v. State, 796 So. 2d 1205, 1206…
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Terrell v. State, 9 So. 3d 1284 (Fla. 4th DCA 2009)…rter, was “sleeping and falling over.” Defense counsel failed to object. The state has essentially confessed error as to the trial court’s failure to hold an evidentiary hearing as to this allegation. This confession is well-taken. In Simo v. State, 790 So. 2d 1190, 1191 (Fla. 4th DCA 2001), we found that a claim that defense counsel had failed to object to a sleeping juror was legally and factually sufficient and that it was error to have summarily denied that claim. Based on the foregoing, we reverse and re…
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Judd v. State, 951 So. 2d 103 (Fla. 4th DCA 2007)…s previously reversed the summary denial of rule 3.850 motions in which the defendant alleged his trial counsel was ineffective in failing to object to a sleeping juror. See, e.g., Erlsten v. State, 842 So. 2d 967 (Fla. 4th DCA 2003); Simo v. State, 790 So. 2d 1190 (Fla. 4th DCA 2001); McGraw v. State, 796 So. 2d 1205 (Fla. 4th DCA 2001); Kesick v. State, 448 So. 2d 644 (Fla. 4th DCA 1984). Other courts have done so as well. See, e.g., Wilson v. State, 828 So. 2d 1086 (Fla. 1st DCA 2002); Kelley v. State, 805…
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
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Oisorio v. State, 676 So. 2d 1363 (Fla. 1996)
- Britton v. State, 604 So. 2d 1288 (Fla. 2d DCA 1992)
- Evans v. State, 737 So. 2d 1167 (Fla. 2d DCA 1999)