DALE PHELPS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2005-09-13
No. 1D05-0768
KAHN, C.J., WOLF and PADOVANO, JJ., concur.
911 So. 2d 186 Florida District Court of Appeal, First District (2005) Positive Treatment
Cited by 2 cases

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Synopsis

Dale Phelps challenges the denial of his postconviction motion claiming ineffective assistance of counsel at a probation violation hearing. The court reversed the summary denial, finding that Phelps stated a facially sufficient claim that his counsel failed to present evidence of his incompetence, which could have negated the finding that he willfully and substantially violated his probation.


Holding

The court reversed the summary denial because Phelps stated a facially sufficient claim of ineffective assistance of counsel. Defense counsel's failure to offer evidence of incompetence to support a finding that the appellant had not willfully and substantially violated probation can constitute ineffective assistance. Additionally, even if previously adjudicated competent, a trial court must hold a competency hearing if bona fide doubt about continued competence is raised.


Headnotes

[1] A trial court's summary denial of a postconviction motion is reversible error when the movant alleges ineffective assistance of counsel for failing to present evidence of…

[2] Failure to offer evidence of a defendant's incompetence to support a finding of no willful and substantial probation violation can constitute ineffective assistance of co…

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Key Quotes

“Defense counsel's failure to offer evidence of appellant's incompetence to support a finding that the appellant had not willfully and substantially violated his probation at a violation of probation proceeding can amount to ineffective assistance of counsel.”

Establishes the legal standard for ineffective assistance in probation violation proceedings regarding incompetence evidence

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Facts & Procedural History

Phelps was found in violation of probation for violating a restraining order by slitting his wrists outside his ex-wife's residence. A previous compet…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The appellant challenges the trial court’s summary denial of his postconviction motion. We reverse the summary denial of the appellant’s claim, in which he alleged that he was denied effective assistance of counsel when his counsel failed to offer evidence of the appellant’s incompetence to support a finding that the appellant had not willfully and substantially violated his probation at a violation of probation proceeding.

The appellant asserts he was found in violation of his probation for violating the terms of a restraining order when the appellant “slit his wrists in the middle of the night outside his ex-wife’s residence.” Defense counsel’s failure to offer evidence of appellant’s incompetence to support a finding that the appellant had not willfully and substantially violated his probation at a violation of probation proceeding can amount to ineffective assistance of counsel. See Medrano v. State, 892 So. 2d 508 (Fla. 3d DCA 2004).

Furthermore, even if an appellant has been previously adjudicated competent, the trial court is required to hold an additional competency hearing if a bona fide doubt is raised regarding the appellant’s continued competence. See Brockman v. State, 852 So. 2d 330 (Fla. 2d DCA 2003).

In the instant case, the appellant concedes that he had previously been adjudicated competent; however, the written competency evaluation expressly stated that the appellant must remain on “his current psychotropic medications ... without such treatment he might deteriorate and become incompetent to proceed.” The appellant specifically asserts that he violated his probation because he was unable to obtain his required medication and that his counsel was aware that he had not been receiving the required treatment at his violation of probation proceeding. In further support of his claim, the appellant asserts that his counsel knew of the previous competency evaluation suggesting that the appellant may become incompetent to proceed if unable to obtain the necessary medical treatment.

Finally, the appellant asserts that had his counsel introduced evidence of his incompetence at the violation of probation proceeding the trial court could not have found him to be in willful and substantial violation of his probation.

Thus, the appellant has alleged that he was prejudiced by his counsel’s deficient performance and the appellant has asserted a facially sufficient claim of ineffective assistance of counsel.

We therefore reverse the summary denial and remand for the trial court to hold an evidentiary hearing, if necessary, or else attach additional record portions conclusively refuting the appellant’s claim.

REVERSED AND REMANDED.

KAHN, C.J., WOLF and PADOVANO, JJ., concur.


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Citator

Cited By

  • Ganey v. State, 977 So. 2d 698 (Fla. 1st DCA 2008)
    …es applying rule 3.850 to probation revocation hearings. See e.g. Flowers v. State, 947 So. 2d 639 (Fla. 4th DCA 2007); Hollander v. State, 920 So. 2d 204, (Fla. 4th DCA 2006); Gilbert v. State, 913 So. 2d 84, 85 (Fla. 2d DCA 2005); Phelps v. State, 911 So. 2d 186 (Fla. 1st DCA 2005); Mikell v. State, 903 So. 2d 1054, 1054 (Fla. 2d DCA 2005); Medrano v. State, 892 So. 2d 508 (Fla. 3d DCA 2004). Nevertheless, the appellant’s claims are without merit. Therefore, we affirm without further discussion. See Kenna…

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