PHILOME LEO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that several claims of ineffective assistance of counsel were not conclusively refuted and require further proceedings. Other claims were properly denied.
[1] Claims of ineffective assistance of counsel are not conclusively refuted and require record attachments or an evidentiary hearing when they state facially sufficient clai…
[2] A claim of ineffective assistance of counsel based on counsel refusing to allow a defendant to testify, or pressuring the defendant to follow counsel's advice under threa…
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Join FLexlaw to unlock all legal intelligenceAppellant sought post-conviction relief, alleging multiple instances of ineffective assistance of counsel, including failure to call witnesses, pressu…
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PER CURIAM.
We reverse in part the trial court’s summary denial of appellant’s motion for post-conviction relief. We conclude that several claims of ineffective assistance of counsel were not conclusively refuted and require record attachments or an evidentiary hearing.
First, claims 4, 5, 6, and 7 all stated facially sufficient claims of ineffective assistance for failure to call witnesses. See Nelson v. State, 875 So. 2d 579 (Fla.2004). These claims were not conclusively refuted by the attachments to the state’s response which were incorporated into the order of denial.
Second, appellant alleges that counsel refused to allow him to testify and threatened and pressured him such that he feared counsel would abandon the case mid-trial if he did not follow counsel’s advice. This, too, is not refuted by the record, because in the court’s colloquy with appellant at trial regarding his “decision” not to testify, no inquiry was made about threats to withdraw. See Tyler v. State, 793 So. 2d 137 (Fla. 2d DCA 2001).
Third, appellant also makes a claim that his statement to the police should have been suppressed because of deficient Miranda warnings. See Roberts v. State, 874 So. 2d 1225 (Fla. 4th DCA 2004). This, too, is not conclusively refuted by the record. Finally, appellant alleged that counsel was ineffective for failing to seek dismissal of counts two and three of the information as violative of double jeopardy. We agree that his allegations are legally sufficient as to count three but not as to count two. The claim as to count three requires the attachment of record evidence which conclusively refutes the allegations.
We reverse the summary denial and remand for the trial court to attach portions of the record that conclusively refute the foregoing allegations we have identified as legally sufficient, or for an evidentiary hearing on these allegations. As to the other claims made by appellant, we affirm their summary denial.
SHAHOOD, C.J., WARNER and STEVENSON, JJ., concur.
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Jammie Jerome Brown, Jr. v. State, 241 So. 3d 243 (Fla. 5th DCA 2018)…n the face of the attached record, we reverse the summary denial of ground one. On remand, the trial court must either attach those portions of the record conclusively refuting this ground for relief or hold an evidentiary hearing. See Leo v. State, 959 So. 2d 1284, 1285 (Fla. 4th DCA 2007). In closing, the State has properly conceded that the trial court erred in failing to address ground five of the defendant's motion. Accordingly, we remand so the trial court can properly address this ground for relief. Se…
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Jammie J. Brown, Jr. v. State (Fla. 5th DCA 2018)…face of the attached record, we reverse the summary denial of ground one. On remand, the trial court must either attach those portions of the record conclusively refuting this ground for relief or hold an evidentiary hearing. See Leo v. State, 959 So. 2d 1284, 1285 (Fla. 4th DCA 2007). In closing, the State has properly conceded that the trial court erred in failing to address ground five of the defendant’s motion. Accordingly, we remand so the trial court can properly address this ground for relief…
Authorities Cited
- Nelson v. State, 875 So. 2d 579 (Fla. 2004)
- Gorman Roberts, Jr. v. State, 874 So. 2d 1225 (Fla. 4th DCA 2004)
- Earon L. Tyler v. State, 793 So. 2d 137 (Fla. 2d DCA 2001)