JOSE L. ORTIZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jose Ortiz appealed the summary denial of his Rule 3.850 postconviction motion claiming ineffective assistance of counsel on six grounds. The appellate court affirmed the denial of five grounds but reversed and remanded ground five, finding that Ortiz presented a facially sufficient claim regarding counsel's failure to impeach witnesses with inconsistent testimony, and that the trial court failed to attach record portions conclusively refuting this claim.
Ortiz presented a facially sufficient claim of ineffective assistance regarding counsel's failure to impeach witnesses; however, the trial court erred by summarily denying the claim without attaching record portions to conclusively refute it. On remand, the trial court may deny relief if it attaches portions of the record conclusively refuting the claim, or must conduct an evidentiary hearing if the claim is not conclusively refuted.
[1] A claim of ineffective assistance of counsel is facially sufficient when the defendant alleges counsel failed to impeach witnesses whose testimony was inconsistent and co…
[2] A trial court must attach portions of the record that conclusively refute a facially sufficient claim of ineffective assistance of counsel.
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Join FLexlaw to unlock all legal intelligence“Ortiz presented a facially sufficient claim of ineffective assistance of counsel; however, the trial court failed to attach any portion of the record to conclusively refute Ortiz's claim.”
Establishes the appellate court's key finding that while the trial court was entitled to deny relief, it must support summary denial with record attachments or conduct a hearing.
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Join FLexlaw to unlock all legal intelligenceJose Ortiz was convicted at trial. In his postconviction motion, Ortiz raised six grounds of ineffective assistance of counsel. In ground five, he cla…
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VILLANTI, Judge.
Jose Ortiz challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 and the order denying his motion for rehearing. Ortiz raised six grounds of ineffective assistance of counsel. We affirm without comment as to the denial of grounds one, two, three, four, and six, and we reverse as to ground five.
In ground five of his motion, Ortiz claims counsel rendered ineffective assistance by failing to impeach several State witnesses’ inconsistent and conflicting testimony. He specifies several inconsistencies among the testimony of four State witnesses and claims that, but for counsel’s deficient performance, the outcome of the trial would have been different. Specifically, if the jury had heard the witnesses’ conflicting and inconsistent statements, Ortiz would have been found not guilty. Despite Ortiz’s claim, the trial court summarily denied ground five and concluded Ortiz had failed to demonstrate that the trial would have resulted in a different outcome. We find that Ortiz presented a facially sufficient claim of ineffective assistance of counsel; however, the trial court failed to attach any portion of the record to conclusively refute Ortiz’s claim. Accordingly, we reverse and remand. On remand, the trial court may again deny relief if it can attach portions of the record that conclusively refute the claim. To the extent that-the claim is not conclusively refuted by the record, the trial court shall conduct an evidentiary hearing to determine whether Ortiz’s counsel was ineffective for failing to impeach several witnesses.
Affirmed in part, reversed in part, and remanded.
SALCINES and WALLACE, JJ., Concur.