DESMOND BYRD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
DESMOND BYRD, APPELLANT,
STATE OF FLORIDA, APPELLEE
985 So. 2d 66
Florida District Court of Appeal, First District (2008)
Positive Treatment
Cited by 57 cases
Opinion of the Court
PER CURIAM.
The appellant appeals an order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. 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.
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Veldrin D. Freemon v. Deutsche Bank Tr. Co. Americas, 46 So. 3d 1202 (Fla. 4th DCA 2010)…e Crowley v. Crowley, 678 So. 2d 435, 438 (Fla. 4th DCA 1996), the standard of review of an order on a rule 1.540(b) motion for relief from judgment is whether there has been an abuse of the trial court’s discretion. J.J.K. Int'l, Inc. v. Shivbaran, 985 So. 2d 66, 68 (Fla. 4th DCA 2008). To entitle a movant to an eviden-tiary hearing on a motion for relief from judgment, a rule 1.540(b)(3) motion must specify the fraud with particularity and explain why the fraud, if it exists, would entitle the movant to h…
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Acosta v. Deutsche Bank Nat'l Tr. Co. in Tr. for the benefit of the Certificateholders for Ameriquest Mortg. Sec. Tr. 2006-M3, 88 So. 3d 415 (Fla. 4th DCA 2012)…Appellant’s claim that a failure to appear due to a calendaring or clerical error is the type of “excusable neglect” or “mistake” that warrants relief under rule 1.540(b) is well-supported in Florida law. See, e.g., J.J.K. Int’l, Inc. v. Shivbaran, 985 So. 2d 66, 68-69 (Fla. 4th DCA 2008) (holding it was error to deny 1.540(b) motion seeking relief from order of dismissal entered after counsel failed to appear at hearing on motion to dismiss because secretary mistakenly marked hearing as “can-celled”); Wils…
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Suntrust Mortg. v. Torrenga, 153 So. 3d 952 (Fla. 4th DCA 2014)…13) (“[W]e review an order denying a motion to vacate a default for an abuse of discretion.”). Analysis Florida courts have a preference for deciding cases on the merits of the claims rather than on a technicality. J.J.K. Int’l, Inc. v. Shivbaran, 985 So. 2d 66, 69 (Fla. 4th DCA 2008). As discussed below, where an issue is. decided on a technicality and the failure of a party to comply with the technical requirement can be attributed to excusable neglect, courts have consistently allowed the party to seek…
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- Tidwell v. State, 844 So. 2d 701 (Fla. 1st DCA 2003)
- Martin v. State, 927 So. 2d 13 (Fla. 1st DCA 2006)