GABRIEL FERNANDEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Fernandez appeals the trial court's summary denial of his rule 3.850 postconviction motion claiming ineffective assistance of counsel. The Fourth District Court of Appeal affirms the denial of one ineffectiveness claim but reverses and remands another claim concerning the trial court's failure to place prospective jurors under oath prior to voir dire, finding the record inconclusive on the issue.
The court affirmed the summary denial of part (E) based on the record attached to the order. The court reversed and remanded part (D), holding that the attached transcript portions were inconclusive regarding whether prospective jurors were sworn, and that the claim may be legally sufficient, requiring either an evidentiary hearing or further record materials showing conclusively that appellant is entitled to no relief.
[1] A trial court's summary denial of a postconviction relief motion is affirmed as to claims conclusively refuted by attached portions of the record.
[2] A claim of ineffective assistance of counsel based on the failure to object to prospective jurors not being placed under oath prior to voir dire may be legally sufficient…
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Join FLexlaw to unlock all legal intelligence“We disagree with the state's position that the portions of the trial transcript attached to the order of denial in connection with this claim refuted the claim by establishing that the potential jurors in fact were placed under oath by another judge prior to being brought into the courtroom for voir dire. Those pages are entirely inconclusive on the question of whether the prospective jurors ever were sworn.”
The court rejected the state's argument that the attached transcript conclusively proved jurors were sworn, finding the record inconclusive on this critical factual issue.
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Join FLexlaw to unlock all legal intelligenceFernandez filed a postconviction motion under rule 3.850, Florida Rules of Criminal Procedure, raising multiple grounds for relief including claims of…
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PER CURIAM.
Gabriel Fernandez (Appellant) appeals an order summarily denying his motion for postconviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure, after this court earlier reversed in part a prior denial of the same motion for reconsideration of parts (D) and (E) of Appellant’s fourth ground for relief, both of which were claims of ineffective assistance of counsel. See Fernandez v. State, 758 So. 2d 1199 (Fla. 4th DCA 2000). On remand, the trial court denied both claims based on the state’s response, attaching portions of the record.
We conclude that the trial court did not err in summarily denying part (E) based on the portions of the record that were attached to the trial court’s order of denial and affirm the order as to that claim without further discussion.
We reverse and remand, however, as to part (D). In part (D) of the fourth ground of his motion, Appellant claimed that his trial counsel was ineffective in failing to object to the trial court’s failure to place the prospective jurors under oath prior to voir dire.
We disagree with the state’s position that the portions of the trial transcript attached to the order of denial in connection with this claim refuted the claim by establishing that the potential jurors in fact were placed under oath by another judge prior to being brought into the courtroom for voir dire. Those pages are entirely inconclusive on the question of whether the prospective jurors ever were sworn, and, as we previously noted, that ground may be legally sufficient. See Mesidor v. State, 521 So. 2d 333 (Fla. 4th DCA 1988) (reversing the denial of a motion for postconviction relief based on the trial court’s failure to swear in an interpreter); Ex parte Hamlett, 815 So. 2d 499 (Ala.2000) (remanding for a finding as to whether the jury was sworn prior to voir dire as necessary before the appeals court could determine whether the defendant’s attorney was ineffective for failing to object to the lack of an oath); Duren v. State, 813 So. 2d 928 (Ala.Crim.App.2000) (same).
Accordingly, we affirm in part and reverse in part, remanding for the trial court to conduct an evidentiary hearing or to attach further portions of the files and records showing conclusively that Appel-, lant is entitled to no relief on part (D) of the fourth ground of his motion for post-conviction relief.
POLEN, C.J., SHAHOOD and HAZOURI, JJ., concur.
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Lott v. State, 826 So. 2d 457 (Fla. 1st DCA 2002)…false information and that the defendant would likely have prevailed at trial with a different juror. We acknowledge that the defendant’s argument appears to be supported by a decision of the Fourth District Court of Appeal. See Fernandez v. State, 814 So. 2d 459 (Fla. 4th DCA 2001). However, the opinion in Fernandez does not address the potential prejudice a defendant might suffer if his counsel fails to ensure that the preliminary oath is given. Nor is this point discussed in any of the cases cited as auth…
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Hayes v. State, 855 So. 2d 144 (Fla. 4th DCA 2003)…el’s deficiencies. Appellant failed to show that the results of the proceeding would have been different or that an unsworn juror lied during voir dire, affecting the jury composition. See Pena, 829 So. 2d at 294. We recede from Fernandez v. State, 814 So. 2d 459 (Fla. 4th DCA 2001). In Fernandez, as here, appellant also alleged in his postconviction relief motion that trial counsel was ineffective for not objecting to the trial court’s failure to place prospective jurors under oath prior to voir dire. The t…
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Ottesen v. State, 862 So. 2d 30 (Fla. 2d DCA 2003)…failure to object. Therefore, he has not satisfied the prejudice prong of an ineffective assistance of counsel claim. See Davis, 848 So. 2d at 419-20. We affirm the trial court’s order on this claim, and we certify conflict with Fernandez v. State, 814 So. 2d 459 (Fla. 4th DCA 2001), as to this issue, as we did in Davis. 848 So. 2d at 420. Ottesen also raises six claims in his motion that the trial court failed to address in its order of denial. Therefore, we reverse and remand for the trial court to consid…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dennis v. State, 758 So. 2d 1199 (Fla. 4th DCA 2000)
- Ghislaine Mesidor v. State, 521 So. 2d 333 (Fla. 4th DCA 1988)
- Gomez v. State, 521 So. 2d 333 (Fla. 4th DCA 1988)