ALONZO COOPER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Summary denial of post-conviction relief was improper because the record did not conclusively refute the claim of ineffective assistance of counsel.
Alonzo Cooper appealed the summary denial of his motion for post-conviction relief, alleging ineffective assistance of counsel. Specifically, he claim…
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PER CURIAM.
Alonzo Cooper appeals the summary denial of his Rule 3.850 motion for postcon-viction relief raising multiple claims of ineffective assistance of counsel. We have reviewed Cooper’s claims and determined that summary denial was improper on one of them.
Cooper alleges that trial counsel conceded his guilt to charged offenses without his consent. The record reveals trial counsel conceded Cooper’s involvement in the charged criminal acts in opening argument and failed to subject the state’s case to meaningful adversarial testing. A presumption of ineffectiveness arises in this situation unless Cooper consented to counsel’s strategy. See Nixon v. Singletary, 758 So. 2d 618 (Fla.2000), cert. denied, 531 U.S. 980, 121 S.Ct. 429, 148 L.Ed.2d 437 (2000); Smallwood v. State, 809 So. 2d 56 (Fla. 5th DCA 2002); United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
The record attachments provided by the trial court do not conclusively refute Cooper’s claim. See McLin v. State, 827 So. 2d 948 (Fla.2002). Therefore, we reverse and remand for the trial court to conduct an evidentiary hearing or attach portions of the record conclusively refuting Cooper’s claim that he did not consent to counsel’s strategy.
REVERSED AND REMANDED.
KLEIN, SHAHOOD and HAZOURI, JJ., concur.
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Nicholas v. State, 47 So. 3d 297 (Fla. 2d DCA 2010)…ution of a duly selected alternate juror renders any error in removing a juror from the jury panel harmless. See, e.g., Newton v. State, 178 So. 2d 341, 345 (Fla. 2d DCA 1965); Lowry v. State, 963 So. 2d 321, 327 (Fla. 5th DCA 2007); Ortiz v. State, 835 So. 2d 1250, 1251 (Fla. 4th DCA 2003); Graham v. State, 470 So. 2d 97, 98 (Fla. 1st DCA 1985); State v. Tresvant, 359 So. 2d 524, 526 (Fla. 3d DCA 1978). But the statements in these cases on the harmless error issue are dicta, and in each of these cases, the re…
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Tobias Brown v. State, 967 So. 2d 440 (Fla. 4th DCA 2007)…relief. McLin v. State, 827 So. 2d 948, 954 (Fla.2002). However, if the claims are facially sufficient, the trial court must attach portions of the record showing the claimant is not entitled to relief. See Fla. R.Crim. P. 3.850(d); Cooper v. State, 835 So. 2d 1250 (Fla. 4th DCA 2003). Moreover, when the trial court does not hold an evidentiary hearing, a reviewing court must accept as true the factual allegations “to the extent they are not refuted by the record.” McLin, 827 So. 2d at 954 (citing Foster v. St…
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Hinton v. State, 854 So. 2d 254 (Fla. 5th DCA 2003)…d felonies. See also Nixon v. Singletary, 758 So. 2d 618 (Fla.2000) (holding that if counsel conceded defendant’s guilt to charged offenses in opening and closing argument without defendant’s consent, counsel is per se ineffective); Cooper v. State, 835 So. 2d 1250 (Fla. 4th DCA 2003). In the instant case, it appears counsel conceded Hinton’s guilt to charged offenses. We instruct the trial court that in this situation pursuant to Smallwood, prejudice need not be shown when counsel makes a concession without t…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Cronic, 466 U.S. 648 (U.S. 1984)
- McLIN v. State, 827 So. 2d 948 (Fla. 2002)
- Nixon v. Singletary, 758 So. 2d 618 (Fla. 2000)
- Smallwood v. State, 809 So. 2d 56 (Fla. 5th DCA 2002)
- Florida v. Nixon, 531 U.S. 980 (U.S. 2000)
- Karara v. Commissioner of Internal Revenue, 531 U.S. 980 (U.S. 2000)