CARLOS A. MARTIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Carlos Martin appeals the denial of his 3.850 post-conviction motion for ineffective assistance of counsel. The court reversed in part, finding three claims were facially sufficient to warrant an evidentiary hearing, while affirming the denial of remaining claims.
The court held that three claims regarding ineffective assistance of counsel were facially sufficient to require either an evidentiary hearing or record excerpts conclusively refuting them: (1) failure to object to prison commitment references; (2) failure to object to prosecutorial comments on witness credibility; and (3) failure to request a self-defense instruction. The remaining claims were properly denied.
[1] A motion for post-conviction relief must be denied without an evidentiary hearing only if the claims raised are facially insufficient.
[2] A defendant is entitled to an evidentiary hearing or the attachment of record excerpts conclusively refuting the claims if the claims in a motion for post-conviction reli…
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Join FLexlaw to unlock all legal intelligence“As to three claims, however, the lower court erred in finding them to be facially insufficient.”
Establishes that three specific claims met the facial sufficiency threshold requiring further proceedings
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Join FLexlaw to unlock all legal intelligenceMartin filed a post-conviction motion under rule 3.850, Florida Rules of Criminal Procedure, raising claims of ineffective assistance of counsel. The …
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PER CURIAM.
Carlos A. Martin appeals an order denying his motion for post-conviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. The lower court denied relief as to all claims raised finding them to be facially insufficient; thus, the lower court denied relief without benefit of an evidentiary hearing and without attaching portions of the record refuting the claims raised. As to three claims, however, the lower court erred in finding them to be facially insufficient. Accordingly, we reverse and remand this cause to the lower court for further consideration of the claims that (i) defense counsel was ineffective for failing to object to references at trial regarding appellant’s commitment to a prison unit for violent prisoners (ground c in appellant’s 3.850 motion); (ii) defense counsel was ineffective for failing to object to prosecutor’s closing argument regarding the weight to be accorded by the jury to the defense witnesses (ground d in appellant’s 3.850 motion), and (iii) defense counsel was ineffective for failing to request a self-defense instruction (ground e in appellant’s 3.850 motion). On remand, the lower court either must conduct an evidentiary hearing or attach those record excerpts which conclusively refute the above-noted claims. See Fla. R.App. P. 9.141(b)(2)(D); Miller v. State, 905 So. 2d 981, 982 (Fla. 3d DCA 2005)(“In the present case the record now before us contains no record excerpts which conclusively refute the defendant’s claim. Accordingly, we reverse the order now before us and remand for the trial court to conduct an evidentiary hearing, or attach record excerpts which demonstrate conclusively that the defendant is not entitled to any relief.”).
We affirm the denial of post-conviction relief as to the remaining claims in appellant’s motion.
AFFIRMED in part, REVERSED in part and REMANDED.
ALLEN, VAN NORTWICK and POLSTON, JJ., concur.
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Citator
Cited By
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Desmond Byrd v. State, 985 So. 2d 66 (Fla. 1st DCA 2008)…50. We reverse and remand because the trial court has failed to attach any records that conclusively refute the appellant’s claims of ineffective assistance of trial counsel. See Tidwell v. State, 844 So. 2d 701 (Fla. 1st DCA 2003); Martin v. State, 927 So. 2d 13 (Fla. 1st DCA 2006). The trial court shall either attach records conclusively refuting the claims, or hold an evidentiary hearing. REVERSED AND REMANDED. BROWNING, C.J., PADOVANO, and POLSTON, JJ., concur.…
Authorities Cited
- Miller v. State, 905 So. 2d 981 (Fla. 3d DCA 2005)