MANUEL RODRIGUEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Rodriguez appealed the denial of his Rule 3.850 postconviction relief motion following his burglary conviction. The Third District Court of Appeal affirmed in part and reversed in part, remanding for an evidentiary hearing on two claims of ineffective assistance of counsel.
The court reversed the denial and remanded for an evidentiary hearing on points five and six regarding ineffective assistance of counsel claims, but affirmed the denial on all remaining points. The court determined that the record did not conclusively refute Rodriguez's claims that counsel failed to call witnesses who would have supported his defense and that counsel gave incorrect advice about the consequences of testifying.
[1] A voluntary dismissal of a motion for postconviction relief does not preclude the filing of a subsequent, amended motion.
[2] An appellate court must reverse the summary denial of a motion for postconviction relief unless the record conclusively shows the appellant is entitled to no relief.
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Join FLexlaw to unlock all legal intelligence“On appeal from a summary denial of a Rule 3.850 motion, this court must reverse unless the postconviction record shows conclusively that the appellant is entitled to no relief.”
Establishes the standard of review for postconviction relief motions on appeal
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Join FLexlaw to unlock all legal intelligenceRodriguez was convicted of burglary of a conveyance, and his conviction was affirmed on direct appeal. He filed a first motion for postconviction reli…
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PER CURIAM.
Manuel Rodriguez appeals the denial of his motions for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.
Defendant-appellant Rodriguez was convicted of burglary of a conveyance. His conviction was affirmed on appeal. See Rodriguez v. State, 827 So. 2d 1005 (Fla. 3d DCA 2002).
The defendant filed a timely motion for postconviction relief (“First Motion”). He filed a voluntary dismissal of the motion. The trial court overlooked the voluntary dismissal and entered an order denying the First Motion. The defendant appealed.
The defendant filed a second motion for postconviction relief (“Second Motion”). The Second Motion was denied and the defendant has appealed. The appeals have been consolidated.
The State suggests that in view of the procedural history, the Second Motion is properly viewed as an amended version of the First Motion. We agree.
Upon consideration, we conclude that we must reverse the denial order with refer ence to points five and six of the Second Motion and remand for an evidentiary hearing on those points only. On appeal from a summary denial of a Rule 3.850 motion, this court must reverse unless the postconviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).
In point five of the defendant’s sworn Second Motion defendant claims ineffective assistance of trial counsel. He claims that his attorney failed to call several witnesses at trial. He names several witnesses who he claims would testify that they dropped him off near the site of the burglarized vehicle. He maintains they would testify that he never entered the vehicle. This testimony would support the testimony of the defense witness who testified at trial, and contradict that of the police officer who testified at trial. As the present record does not conclusively refute the defendant’s claim, we remand for an evidentiary hearing. See Jacobs v. State, 880 So. 2d 548, 553-54 (Fla.2004); Ford v. State, 825 So. 2d 358, 360-62 (Fla.2002).
On point six of the Second Motion, the defendant claims that he was given affirmative misadviee by his counsel regarding the consequences if he chose to testify. He alleges that his counsel told him if he testified the State would be able to place the details of his prior criminal history before the jury. Since such advice, if it occurred, would be incorrect, the defendant is entitled to a hearing on that point. See Bell v. State, 901 So. 2d 180 (Fla. 3d DCA 2005). The defendant also claims that his counsel threatened to withdraw if the defendant took the stand. That claim is also not refuted by the colloquy conducted during the trial, or otherwise refuted by the record now before us.
We affirm the denial of postconviction relief on the remaining points.
Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.
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Drinel Joseph v. State, 214 So. 3d 741 (Fla. 5th DCA 2017)…that the jury would hear the “specific nature” of his prior convictions, instead of learning only the number of his prior convictions. Affirmative misadvice regarding impeachment with prior convictions is a cognizable claim. See Rodriguez v. State, 909 So. 2d 955, 956 (Fla. 3d DCA 2005). Appellant claims that but for this misadvice, he would have testified, even though his testimony would have included an admission that he liéd to the police about his alibi because he was on probation and was not supposed to…
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Walker v. State, 223 So. 3d 388 (Fla. 5th DCA 2017)…hat if he took the stand, the State would be able to present ■to the jury the details of his extensive criminal record.” Affirmative misadvice regarding impeachment with prior convictions is a cognizable postconviction claim. See Rodriguez v. State, 909 So. 2d 955, 956 (Fla. 3d DCA 2005). Accordingly, we reverse this ground for the postconviction court to attach records conclusively refuting this claim or to hold an evidentiary hearing. However, we affirm the postconviction court’s order as to Walker’s third…
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McClenney v. State (Fla. 3d DCA 2022)…convicted. Absent record evidence to rebut such an assertion in a postconviction motion, the trial court would generally be required to hold an evidentiary hearing to make factual and credibility-based determinations. See, e.g., Rodriguez v. State, 909 So. 2d 955 (Fla. 3d DCA 2005) (reversing summary denial of motion for postconviction relief and remanding for evidentiary hearing on defendant’s claim that attorney affirmatively 5 So those are the only two questi…
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
- Alwin J. Jacobs v. State, 880 So. 2d 548 (Fla. 2004)
- Ford v. State, 825 So. 2d 358 (Fla. 2002)
- Bell v. State, 901 So. 2d 180 (Fla. 3d DCA 2005)