DAVID G. THURMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thurman appeals the trial court's summary denial of his Rule 3.850 motion for post-conviction relief challenging his grand theft conviction. The court affirms the summary denial of ground eight but reverses and remands ground three, finding a facially sufficient ineffective assistance of counsel claim regarding trial counsel's failure to investigate the air conditioner's actual market value.
The trial court erred in summarily denying ground three of the motion because Thurman stated a facially sufficient ineffective assistance of counsel claim that was not refuted by the record. The claim that counsel failed to present contradictory evidence regarding the air conditioner's value presents a question of fact requiring an evidentiary hearing.
[1] A claim of ineffective assistance of counsel based on failure to investigate and depose a witness is facially sufficient if the defendant alleges facts that, if proven, w…
[2] A defendant seeking post-conviction relief based on ineffective assistance of counsel must demonstrate that counsel's deficient performance prejudiced the defense.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the thrust of Thurman's claim was not that the evidence was insufficient to establish the value of the air conditioner, but that trial counsel was ineffective for failing to present evidence that contradicted the State's evidence regarding its value”
Explains why the trial court mischaracterized Thurman's argument and why summary denial was inappropriate
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThurman was convicted of grand theft of an air conditioner and fleeing or attempting to elude a police officer. The prosecution presented evidence tha…
The full statement of facts, procedural history, and disposition for this case are member content.
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STRINGER, Judge.
David Thurman seeks review of the trial court’s order denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reject Thurman’s contention that the trial court erred in summarily denying ground eight of the motion, but agree that the court erred in summarily denying ground three. Accordingly, we affirm in part and reverse in part.
Thurman was convicted of grand theft of an air conditioner and fleeing or attempting to elude a police officer. In ground three of his motion for postconviction relief, Thurman alleged that trial counsel was ineffective for failing to adequately investigate his defense and to depose the previous owner of the air conditioner. Thurman claimed that the air conditioner did not have a market value of $300 as required to support a conviction for grand theft pursuant to section 812.014, Florida Statutes (2000).
According to Thurman, if counsel had deposed the previous homeowner he would have established that the unit was eighteen years old. Thurman alleged that counsel could also have determined the unit’s age by checking the serial number with the manufacturer. According to Thurman’s calculations, an eighteen-year-old unit had a fair market value of $250. Thurman also attached a letter from Air America Air Conditioning Corporation stating that the estimated cost of a two-ton unit that was manufactured in 1982 with 24,000 BTUs would be $250.
The trial court summarily denied Thurman’s claim, noting that the current homeowners had testified that the air conditioner was valued at over $300 and the State’s Exhibit G had valued the unit at $800.
The court concluded that Thurman “has failed to show how deposing the previous homeowner would have changed the outcome of the trial.” However, the thrust of Thurman’s claim was not that the evidence was insufficient to establish the value of the air conditioner, but that trial counsel was ineffective for failing to present evidence that contradicted the State’s evidence regarding its value.
Thus, Thurman has stated a facially sufficient claim that is not refuted by the record.
Accordingly, we reverse and remand for an evidentiary hearing on ground three. The remainder of the order is affirmed.
NORTHCUTT, J., and DANAHY, PAUL W., Senior Judge, concur.
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Burris v. State, 68 So. 3d 338 (Fla. 1st DCA 2011)…for postconviction relief,] a mov-ant’s allegations are accepted as true unless they are conclusively refuted by the record”), the appellant has alleged a facially sufficient claim for relief which is not refuted by the record. See Thurman v. State, 892 So. 2d 1085 (Fla. 2d DCA 2004). Accordingly, we AFFIRM the summary denial of grounds one and three of the appellant’s motion, but REVERSE and REMAND the denial of ground two for the court to attach portions of the record conclusively refuting the appellant’s…