ANTHONY JEVON SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Anthony Jevon Smith challenged a postconviction court's denial of his motion for relief under Florida Rule of Criminal Procedure 3.850, raising eighteen grounds based on ineffective assistance of counsel. The appellate court affirmed most of the denial but reversed in part and remanded, finding certain claims legally insufficient but requiring the trial court to allow amendment and address unruled portions of claims.
Grounds four and five were legally insufficient because Smith failed to allege prejudice by not showing the State could not have brought him to trial within the recapture period, but reversal was required under Spera v. State to allow amendment. The postconviction court properly denied the claim regarding counsel's failure to investigate and interview a witness, but must address on remand the unruled portions of amendment three regarding consultation and investigation of stolen items.
[1] A claim of ineffective assistance of counsel for failing to invoke the speedy trial rule is legally insufficient without an allegation of prejudice, such as that the Stat…
[2] A postconviction court must strike claims of ineffective assistance of counsel related to speedy trial violations with leave to amend, consistent with Spera v. …
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Join FLexlaw to unlock all legal intelligence“Mr. Smith failed to allege any prejudice resulting from his trial counsel's conduct. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).”
Establishes that under Strickland, an ineffective assistance claim requires allegation of prejudice, not just deficient performance
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Join FLexlaw to unlock all legal intelligenceSmith was convicted and sought postconviction relief asserting eighteen grounds for ineffective assistance of counsel. Grounds four and five alleged c…
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WALLACE, Judge.
Anthony Jevon Smith challenges a final order that denied his motion for postcon-viction relief under Florida Rule of Criminal Procedure 3.850. In his postconviction motion, Mr. Smith asserted eighteen grounds for relief based on ineffective assistance of counsel. The postconviction court summarily denied some of the grounds raised and denied others after an evidentiary hearing. We affirm without comment the postconviction court’s denial of Mr. Smith’s motion in all respects except for three of the claims.
In grounds four and five, Mr. Smith alleged that his trial counsel provided ineffective assistance because counsel did not invoke the speedy trial rule and did not file a notice of expiration of the speedy trial time period. But Mr. Smith failed to allege any prejudice resulting from his trial counsel’s conduct. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In particular, Mr. Smith did not “allege that the State could not have brought him to trial within the recapture period.” Dexter v. State, 837 So. 2d 595, 596 (Fla. 2d DCA 2003).
Consequently, the postconviction court summarily denied these two claims as legally insufficient.
We agree that the claims were legally insufficient.
However, in light of the recent opinion in Spera v. State, 971 So. 2d 754 (Fla.2007), we reverse the summary denial of grounds four and five and remand with instructions to strike those claims with leave to amend within a specific period of time in accordance with Spera.
In what he identified as amendment three, Mr. Smith claimed that his trial counsel provided ineffective assistance because counsel did not (1) consult with Mr. Smith, (2) investigate and interview a witness, and (3) investigate allegedly stolen items. The postconviction court denied this claim as it relates to counsel’s alleged failure to investigate and interview a witness, but it did not rule on the remaining portions of the claim.
We find no error in the postconviction court’s denial of Mr. Smith’s motion as it relates to his claim that counsel did not investigate and interview a witness.
Nevertheless, we remand this case to allow the postconviction court to address the remaining issues raised in amendment three that were not the subject of a ruling. See Calzada v. State, 934 So. 2d 541, 542 (Fla. 3d DCA 2006).
Affirmed in part, reversed in part, and remanded with directions.
CASANUEVA and CANADY, JJ„ Concur.
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Hammond v. State, 34 So. 3d 58 (Fla. 4th DCA 2010)…insufficient claims such as the one Hammond raises and remanded for the trial court to follow the Spera procedure by striking the claim and permitting an opportunity to amend. Gamble v. State, 996 So. 2d 946, 948 (Fla. 2d DCA 2008); Smith v. State, 988 So. 2d 693, 694 (Fla. 2d DCA 2008). To the extent these cases suggest that remand is required under Spera or that an evidentia-ry hearing is required based on conclusory allegations of prejudice, we certify conflict. Hammond has not demonstrated either error…
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Smith v. State, 213 So. 3d 722 (Fla. 2017)…against him at the time. . As noted above, Davis pleaded guilty to second-degree murder and conspiracy to commit first-degree murder for the death of Brown. . Smith’s reliance on Gee v. State, 13 So. 3d 68 (Fla. 1st DCA 2009), and Smith v. State, 988 So. 2d 693 (Fla. 2d DCA 2008), is misplaced. Unlike in the instant case, the defendant in Gee alleged that trial counsel failed to file a notice of expiration of speedy trial time, which was not refuted by the record, and included an allegation of prejudice. 1…
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Samson Lee Gamble v. State, 996 So. 2d 946 (Fla. 2d DCA 2008)…So. 2d 595, 596 (Fla. 2d DCA 2003).” We agree that the allegation regarding the recapture period is necessary in a claim for ineffective assistance of counsel regarding speedy trial under Florida Rule of Criminal Procedure 3.191. See Smith v. State, 988 So. 2d 693, 694 (Fla. 2d DCA 2008). However, in ground 1(b), it appears that Gamble was addressing his constitutional right to speedy trial, and the postconviction court did not address constitutional speedy trial. Unlike the speedy trial rule, the constituti…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Dexter v. State, 837 So. 2d 595 (Fla. 2d DCA 2003)
- Kermit L. Miller v. State, 934 So. 2d 541 (Fla. 3d DCA 2006)