HECTOR MANUEL RIVERO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court affirmed the denial of a Rule 3.850 motion after remand for an evidentiary hearing, holding that the trial court properly conducted the hearing and did not abuse its discretion in refusing to appoint counsel for the post-conviction proceeding.
A trial court does not abuse its discretion by denying appointment of counsel in a post-conviction Rule 3.850 proceeding when the matter, despite requiring an evidentiary hearing, is not sufficiently complex to warrant appointed counsel.
[1] Appointment of counsel in post-conviction proceedings is discretionary and depends on factors including the adversarial nature, complexity, need for evidentiary hearing,…
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Join FLexlaw to unlock all legal intelligenceRivero filed a Rule 3.850 motion alleging his attorney misadvised him about his sentence if he pled guilty. After this court reversed the summary deni…
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PER CURIAM.
Hector Manuel Rivero filed a motion pursuant to Florida Rule of Criminal Procedure 3.850, which was summarily denied. In Rivero v. State, 744 So. 2d 1255 (Fla. 3d DCA 1999), this Court affirmed in part and reversed in part the summary denial and remanded the matter for an evidentiary hearing on the allegation .that Defendant’s attorney misadvised him concerning the amount of time he would serve if he pled guilty to the charged offenses. After conducting an evidentiary hearing, the lower court again denied the motion. Defendant appeals, arguing that the lower court failed to follow this Court’s mandate and additionally erred by failing to appoint defense counsel for the hearing.
We affirm. We find no merit in Defendant’s contention that the lower court failed to follow this Court’s mandate as Defendant was in fact given an evidentiary hearing.
Additionally, whether or not a defendant is entitled to the appointment of counsel in a post-conviction proceeding is within the discretion of the lower court. See Schneelock v. State, 665 So. 2d 1063 (Fla. 4th DCA 1995). The factors a court should consider when determining whether to appoint counsel include the adversarial nature of the proceeding, the complexity of the proceeding, the need for an evidentiary hearing, and the need for substantial legal research. See Graham v. State, 372 So. 2d 1363, 1366 (Fla.1979).
We find that the court did not abuse its discretion by determining that under the facts of this case, despite the need for an evidentiary hearing, the matter was not so complex as to warrant the appointment of counsel.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
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Gutierrez v. State, 854 So. 2d 218 (Fla. 3d DCA 2003)…see how there could be a fair presentation of the defendant’s claims, or how the attendance of the alleged alibi witnesses could be obtained, without the assistance of counsel. See Williams v. State, 472 So. 2d 738, 740 (Fla.1985); Rivero v. State, 796 So. 2d 633, 634 (Fla. 3d DCA 2001); Johnson v. State, 711 So. 2d 112, 115 (Fla. 1st DCA 1998). “Though need for an evidentiary hearing does not automatically mandate the appointment of counsel, any doubt must be resolved in favor of the defendant.” Florence v.…1 / 2
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Wheeler v. State, 807 So. 2d 94 (Fla. 1st DCA 2002)…videntiary hearing, but the scheduling of a hearing does not invariably require the appointment of counsel. See Williams, 472 So. 2d at 740. Many routine factual disputes can be resolved without the assistance of counsel. See, e.g., Rivero v. State, 796 So. 2d 633 (Fla. 3d DCA 2001). Although the trial court may consider the need for postconviction counsel on its own, the decision to appoint counsel is not one that is made as a matter of course as it is at trial and on appeal. If the defendant does not raise…
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Jontal R. LEE v. State, 847 So. 2d 1142 (Fla. 3d DCA 2003)…pointing counsel. We find no error below and affirm. There is no automatic right to counsel in post-conviction proceedings, and appointment of post-conviction counsel is a matter solely within the discretion of the trial court. See Rivero v. State, 796 So. 2d 633 (Fla. 3d DCA 2001); Schneelock v. State, 665 So. 2d 1063 (Fla. 4th DCA 1995). The factors to be considered by the trial court in exercising that discretion include an examination of the adversarial nature of the proceeding, the complexity of the pr…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Petition of Andrew A. Graham v. State, 372 So. 2d 1363 (Fla. 1979)
- Schneelock v. State, 665 So. 2d 1063 (Fla. 4th DCA 1995)
- Jerome v. State, 744 So. 2d 1255 (Fla. 3d DCA 1999)
- Rivero v. State, 744 So. 2d 1255 (Fla. 3d DCA 1999)