MELVIN BURKE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Melvin Burke appealed the summary denial of his Rule 3.850 postconviction motion alleging ineffective assistance of counsel. The court affirmed the denial of four grounds but reversed the denial of Burke's claim that trial counsel failed to file a notice of expiration of speedy trial time, finding the trial court's attachments insufficient to summarily deny this facially valid claim.
The court affirmed the summary denial of four grounds but reversed as to the speedy trial claim, holding that the trial court's attachments were insufficient to summarily deny Burke's facially valid ineffective assistance claim. The court remanded with directions for the trial court to either attach portions of the record conclusively refuting Burke's entitlement to relief or to hold an evidentiary hearing.
[1] A claim of ineffective assistance of counsel requires a showing that counsel's performance was deficient and that the deficient performance prejudiced the outcome of the…
[2] To establish prejudice from deficient performance, a defendant must allege specific facts that are not conclusively rebutted by the record.
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Join FLexlaw to unlock all legal intelligence“By alleging deficient performance of counsel and a reasonable probability of a different outcome in the absence of the deficient performance, appellant has stated a facially valid claim of ineffective assistance of counsel.”
Establishes the legal standard for ineffective assistance claims under Strickland v. Washington and that Burke met the threshold for a valid claim.
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Join FLexlaw to unlock all legal intelligenceBurke filed a Rule 3.850 motion for postconviction relief asserting five grounds. He claimed his trial counsel failed to file a notice of expiration o…
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PER CURIAM.
Appellant filed a Rule 3.850 motion for postconviction relief, asserting five grounds. The trial court summarily denied the motion, holding that all claims were either procedurally barred or conclusively refuted by the record. We affirm as to all but one of the grounds raised. The attachments to the trial court’s order do not conclusively refute appellant’s claim that his trial counsel was ineffective for failing to file a notice of expiration of speedy trial time. Therefore, we reverse as to that issue, and remand to the trial court with directions either to attach portions of the record conclusively showing that appellant is not entitled to relief or to hold an evidentiary hearing.
Appellant alleged that his trial counsel failed to file a notice of expiration of speedy trial time, and that his trial occurred well after the 175-day period prescribed by Florida Rule of Criminal Procedure 3.191. He also addressed the issue of prejudice by alleging that his counsel’s inaction: (1) precluded his discharge; (2) allowed the state additional time to prepare its ease, which resulted in a key witness changing her story to appellant’s detriment; and (3) precluded the speedy trial issue from being raised on direct appeal. By alleging deficient performance of counsel and a reasonable probability of a different outcome in the absence of the deficient performance, appellant has stated a facially valid claim of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
To summarily deny appellant’s facially sufficient claim, the trial court was required to attach to its order copies of the files or records conclusively showing that appellant was not entitled to relief. Fla. R.Crim. P. 3.850(d).
The trial court attached only a “Progress of Case” sheet. This was insufficient for two reasons.
First, the document appears to be clerk’s notes, rather than a portion of the record. See Collins v. State, 835 So. 2d 373, 373 (Fla. 1st DCA 2003), citing Mayo v. State, 825 So. 2d 1006, 1006 (Fla. 4th DCA 2002)(noting that “the records attached to the trial court’s order denying relief appear to be nothing more than clerk’s notes and do not conclusively refute the claim”).
Second, nothing in the document conclusively shows either that the delay was attributable to any action on the part of appellant or that appellant was otherwise not entitled to discharge under Rule 3.191.
Thus, the trial court’s summary denial of relief on the first ground was improper. See Johnson v. State, 840 So. 2d 369, 370 (Fla. 1st DCA 2003); Brown v. State, 829 So. 2d 975, 976 (Fla. 1st DCA 2002).
As to all grounds raised except the first, the trial court’s order is affirmed. As to the first ground, the order is reversed, and remanded with directions either to attach portions of the record conclusively refuting appellant’s entitlement to relief or to hold an evidentiary hearing.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.
BARFIELD, WEBSTER and BROWNING, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Hammond v. State, 34 So. 3d 58 (Fla. 4th DCA 2010)…t him to trial within the recapture window). Hammond, by contrast, relies on First District cases in which the court has required evidentiary hearings on this type of claim. See, e.g., Gee v. State, 13 So. 3d 68 (Fla. 1st DCA 2009); Burke v. State, 855 So. 2d 207 (Fla. 1st DCA 2003); Brown v. State, 829 So. 2d 975 (Fla. 1st DCA 2002). The movants in the above cases, however, specified some reasonable basis to conclude that the failure to move for speedy trial discharge caused prejudice. Hammond’s claim is i…
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Waty Ryland v. State, 880 So. 2d 816 (Fla. 1st DCA 2004)…stimony. Nothing in the record attached by the trial court “conclusively shows either that the delay was attributable to any action on the part of appellant or that appellant was otherwise not entitled to discharge under Rule 3.191.” Burke v. State, 855 So. 2d 207, 208 (Fla. 1st DCA 2003). Because appellant specifically alleged a deficient performance of his counsel and that there was a reasonable probability of a different outcome in the absence of the deficient performance, appellant has stated a facially v…
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Thomas v. State, 905 So. 2d 249 (Fla. 1st DCA 2005)…stimony at trial. Therefore, the trial court’s summary denial of the appellant’s facially sufficient claim without attaching record portions conclusively refuting the appellant’s allegation was improper. See Fla. R.Crim. P. 3.850(d); Burke v. State, 855 So. 2d 207 (Fla. 1st DCA 2003). Accordingly, the trial court’s order as to the appellant’s eighth claim is hereby reversed and the issue is remanded to the trial court for either the attachment of record portions that conclusively refute the appellant’s claim…
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)
- Hall v. State, 840 So. 2d 369 (Fla. 1st DCA 2003)
- Eccles Mayo v. State, 825 So. 2d 1006 (Fla. 4th DCA 2002)
- Brown v. State, 829 So. 2d 975 (Fla. 1st DCA 2002)
- Collins v. State, 835 So. 2d 373 (Fla. 1st DCA 2003)
- Hollingsworth v. State, 835 So. 2d 373 (Fla. 1st DCA 2003)