MELVIN P. KISER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed denial of most ineffective assistance of counsel claims but remanded one claim regarding counsel's advice on testifying for an evidentiary hearing because the record did not conclusively show the defendant was not entitled to relief.
A defendant is entitled to an evidentiary hearing on a facially sufficient ineffective assistance of counsel claim when the record does not conclusively show he is not entitled to relief.
[1] Under Florida Rule 3.850, a defendant is entitled to an evidentiary hearing on a post-conviction ineffective assistance of counsel claim unless the motion and record conc…
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Join FLexlaw to unlock all legal intelligence“Under rule 3.850, a defendant is entitled to an evidentiary hearing unless the motion and record conclusively show the defendant is not entitled to relief.”
Court citing Jacobs v. State for the standard governing when evidentiary hearings are required on ineffective assistance claims.
Melvin Kiser appealed an order denying his Rule 3.850 post-conviction motion raising multiple ineffective assistance of counsel claims, including one …
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PER CURIAM.
Melvin P. Kiser appeals from an order denying a 3.850 post-conviction motion in which he raised a number of claims of ineffective assistance of counsel. With the exception of Kiser’s first claim regarding counsel’s advice as to whether he should testify at trial, which we find to be facially sufficient, we affirm.
Because the record does not conclusively show that Kiser is not entitled to relief on his facially sufficient claim regarding counsel’s advice as to whether he should testify at trial, we remand that claim to the court below for an evidentiary hearing on the issue. See Jacobs v. State, 880 So. 2d 548, 558 (Fla.2004) (finding that “[u]nder rule 3.850, a defendant is entitled to an evidentiary hearing unless the motion and record conclusively show the defendant is not entitled to relief’); Gordon v. State, 608 So. 2d 925, 925-26 (Fla. 3d DCA 1992) (concluding that “when the trial court is confronted with the claim of ineffective assistance of counsel, a finding that some action or inaction by defense counsel was tactical is generally inappropriate, without an evidentiary hearing. Instead, counsel should be heard from, and, if necessary, cross-examined as to whether a decision truly was ‘tactical’ ”).
Affirmed in part, reversed in part, and remanded.
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Picked v. State, 32 So. 3d 638 (Fla. 4th DCA 2009)…nd, cases where courts have reversed a trial judge’s finding of no procedural prejudice involve the nondisclosure of case specific evidence which would have changed the defendant’s strategy or theory of defense at trial. Thus, in McDowell v. State, 903 So. 2d 290 (Fla. 4th DCA 2005), the charge of possession of an unauthorized short-barreled shotgun was based on the defendant’s constructive possession of a residence where the shotgun was found. The state failed to disclose the defendant’s statement to a poli…
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Osborne v. State, 912 So. 2d 58 (Fla. 4th DCA 2005)…s this claim of ineffective assistance of trial counsel. To the extent the State has argued that defense counsel’s decision not to call these individuals was strategic or tactical, that would call for an evidentiary hearing. See e.g. Kiser v. State, 903 So. 2d 290 (Fla. 3d DCA 2005); James v. State, 881 So. 2d 85 (Fla. 5th DCA 2004); Erlsten v. State, 842 So. 2d 967 (Fla. 4th DCA 2003). Accordingly, we reverse the summary denial of this ground for either an eviden-tiary hearing or the attachment of portions…
Authorities Cited
- Alwin J. Jacobs v. State, 880 So. 2d 548 (Fla. 2004)
- Shoffner v. Shoffner, 608 So. 2d 925 (Fla. 3d DCA 1992)
- Gordon v. State, 608 So. 2d 925 (Fla. 3d DCA 1992)