STEVE FLOWERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed summary denial of postconviction relief where defendant failed to demonstrate that counsel's failure to highlight charge reductions from felony to misdemeanor at VOP hearing would have changed the outcome.
A defendant fails to establish ineffective assistance of counsel at a probation violation hearing when he cannot demonstrate a reasonable likelihood that the outcome would have differed had counsel pointed out that charges had been reduced from felonies to misdemeanors.
[1] Ineffective assistance of counsel at a probation violation hearing requires demonstration that counsel's omission created a reasonable likelihood of a different outcome.
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Join FLexlaw to unlock all legal intelligenceFlowers was arrested on two separate occasions while on probation, resulting in four counts in an amended VOP affidavit. Two of the four counts (count…
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PER CURIAM.
Steve Flowers appeals the order summarily denying his rule 3.850 motion for postconviction relief, claiming ineffective assistance of the attorney who represented him at the hearing on his violation of probation (VOP) and his sentencing on revocation of probation. We affirm. The amended VOP affidavit included four counts, all representing new offenses for which Defendant was arrested, on two separate occasions, while on probation. Defendant claimed his attorney was ineffective in failing to point out to the judge at the VOP hearing that the offenses in counts (3) and (4) had been reduced from felonies to misdemeanors prior to the hearing. Without obtaining a state response on the merits, the trial court summarily denied the motion “for the reasons previously stated by this Court and the 4th DCA.”
Although we have considered previous appeals from this defendant, this court has not previously ruled on the same or a related ground for relief; if the trial court has, it did not attach any portions of the record so indicating. Thus, it is not clear to which previously stated reasons the trial court could have been referring. Nevertheless, we affirm on the merits because Flowers did not demonstrate a reasonable likelihood that the outcome of his VOP hearing would have been any different had counsel pointed out that, of the four offenses on which the amended affidavit of VOP was based, the two felony offenses had been reduced to misdemeanors prior to the hearing.
Affirmed.
WARNER, SHAHOOD and TAYLOR, JJ., concur.
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Ganey v. State, 977 So. 2d 698 (Fla. 1st DCA 2008)…rising out of probation proceedings. This proposition is incorrect. Contrary to the findings of the postconviction court, there are numerous examples of appellate cases 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); Med…