WILLIE ARMSTRONG, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Willie Armstrong appeals the summary denial of his post-conviction ineffective assistance of counsel motion under Florida Rule of Criminal Procedure 3.850. The appellate court reverses two of six ineffectiveness claims because the trial court's denials were not conclusively supported by the record and remands for further proceedings.
The court reversed the trial court's summary denial of these two ineffective assistance claims because the denials were not conclusively refuted by the record attachments. The court remanded for the trial court to determine whether the objection was properly preserved and whether prejudice resulted, with instructions that any renewed summary denial must be supported by specific record portions.
[1] A claim of ineffective assistance of counsel is not conclusively refuted by attachments to a trial court's order when the provided record does not establish the context n…
[2] If a claim of ineffective assistance of counsel regarding the admission of evidence is not preserved, the trial court must then consider whether the defendant was prejudi…
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Join FLexlaw to unlock all legal intelligence“We find that two of the claims are not conclusively refuted by the attachments to the trial court's order and reverse on these points.”
Establishes the standard that summary denial must be supported by record attachments that conclusively refute the claim.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceArmstrong was convicted of kidnapping, sexual battery, and burglary of a dwelling following a jury trial. He claimed his counsel was ineffective for f…
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[*548] BLUE, Chief Judge.
Willie Armstrong, Jr., appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion. Armstrong made six claims of ineffective assistance of counsel in his motion, all of which were denied by the trial court. We find that two of the claims are not conclusively refuted by the attachments to the trial court’s order and reverse on these points. We affirm the denial of the remaining four claims without comment.
Armstrong was convicted of kidnapping, sexual battery, and burglary of a dwelling after a jury trial. Armstrong claimed that his trial counsel was ineffective for failing to object to the admission at trial of a tape of an interview of Armstrong. Armstrong contended that the tape contained the comments of the officer who conducted the interview that reflected the officer’s opinion of Armstrong’s truthfulness and guilt as well as the officer’s opinion of the mental state of the victim.
The transcript attached to the trial court order reflects that Armstrong’s attorney requested that these statements be redacted from the tape, and the court refused the request. However, Armstrong argued that this issue was not preserved for appellate review. The portion of the transcript provided to this court that contains the discussion of the tape does not establish the context of the discussion. Consequently, we are unable to determine whether the objection to the allegedly prejudicial comments was properly preserved. If, on remand, the trial court ascertains that the issue was not preserved, it must then consider whether Armstrong was prejudiced by this omission. If, after having made these evaluations, the trial court finds that the claim should again be summarily denied, it must attach those portions of the record that support its conclusions.
Armstrong’s other facially sufficient claim was that his trial counsel was ineffective for failing to call a witness, his father, whose testimony would have impeached the victim’s testimony that she did not know any of the perpetrators. According to Armstrong, his father saw the victim and Armstrong together smoking marijuana prior to the offense. This is a facially sufficient claim. See Tyler v. State, 793 So. 2d 137 (Fla. 2d DCA 2001).
The trial court denied this claim, stating that the father’s testimony would not have changed the outcome of the trial. Once again, this conclusion is not supported by the attachments to the order. On remand, if the trial court again determines that this claim should be summarily denied, the court shall attach to its order those portions of the record that demonstrate conclusively that Armstrong is not entitled to relief.
Affirmed in part, reversed in part, and remanded.
COVINGTON, J., and THREADGILL, EDWARD F., Senior Judge, Concur.
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Green v. State, 827 So. 2d 1060 (Fla. 2d DCA 2002)…rial court determines that the claim should be summarily denied, it should attach the additional portions of the record that demonstrate conclusively that Mr. Green is not entitled to relief or conduct an evidentiary hearing. See Armstrong v. State, 806 So. 2d 547, 548 (Fla. 2d DCA 2001); Sampson, 751 So. 2d at 602. Mr. Green also claimed ineffective assistance because defense counsel failed to investigate and test automatic shell casings found at the scene. He asserted the shell casings could provide exculp…
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Otneil Bolanos Calderon v. State, 840 So. 2d 427 (Fla. 2d DCA 2003)…determines that the claim should be summarily denied, it should attach the portions of the record that demonstrate conclusively that Mr. Calderon is not entitled to relief. Otherwise, it should conduct an evidentiary hearing. See Armstrong v. State, 806 So. 2d 547, 548 (Fla. 2d DCA 2001). In his third claim, Mr. Calderon asserted defense counsel was ineffective for failing to ask a key State witness, whose credibility was critical, about his past criminal record. Mr. Calderon asserted that the witness had an…
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Howard v. State, 835 So. 2d 281 (Fla. 2d DCA 2002)…is claim. Therefore, we reverse. On remand, if the trial court determines the claim should be summarily denied, it should attach portions of the record that demonstrate conclusively that Mr. Howard is not entitled to relief. See Armstrong v. State, 806 So. 2d 547 (Fla. 2d DCA 2001). In his fifth claim, Mr. Howard asserted his defense counsel also was ineffec [*283] tive for conceding guilt to attempted burglary of a dwelling in closing argument, and for doing so without his specific consent. A concession of…
Authorities Cited
- Earon L. Tyler v. State, 793 So. 2d 137 (Fla. 2d DCA 2001)