LOUIS DEMARCO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Louis DeMArco appealed the summary denial of his Rule 3.850 motion for postconviction relief challenging his conviction. The Florida Fourth District Court of Appeal reversed in part, finding that certain claims of ineffective assistance of counsel required either amendment to state a facially sufficient claim or an evidentiary hearing, rather than summary denial.
The court reversed the summary denial as to claims of ineffective assistance for failure to investigate and failure to call witnesses (requiring amendment to state a facially sufficient claim), the conflict of interest claim (requiring an evidentiary hearing), and failure to preserve issues for appeal (requiring either record attachment conclusively refuting the allegation or an evidentiary hearing). The court affirmed the summary denial as to remaining allegations.
[1] A motion for postconviction relief must be facially sufficient to withstand summary denial.
[2] A claim of ineffective assistance of counsel based on failure to investigate or call witnesses may require remand for amendment of the motion if not facially sufficient.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A situation in which the attorney's own interests diverge from those of the client presents the same core problem presented in the multiple representation cases: the attorney's fealty to the client is compromised.”
Establishes the standard for evaluating attorney conflict of interest claims and why they require an evidentiary hearing rather than summary denial.
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Join FLexlaw to unlock all legal intelligenceDeMArco filed a postconviction motion alleging ineffective assistance of counsel on multiple grounds: failure to investigate, failure to call witnesse…
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WARNER, J.
The appellant challenges the summary denial of his motion for postcon-viction relief pursuant to Florida Rule of Criminal Procedure 3.850. We issued an order to show cause to the state, to which it did not respond.
We reverse in part the order summarily denying relief. We remand to allow the appellant to amend his motion to file a facially sufficient motion, as required by Spera v. State, 971 So. 2d 754 (Fla.2007), as to his claims of ineffective assistance of counsel for failure to investigate and failure to call witnesses. As to his claim regarding his attorney’s conflict of interest, we remand for an evidentiary hearing on that issue. See State v. Larzelere, 979 So. 2d 195, 208 (Fla.2008); Burnside v. State, 656 So. 2d 241, 243-44 (Fla. 5th DCA 1995) (“A situation in which the attorney’s own interests diverge from those of the client presents the same core problem presented in the multiple representation cases: the attorney’s fealty to the client is compromised.”) (quoting United States v. Fulton, 5 F. 3d 605, 609 (2d Cir.1993)).
We also reverse on his claim of ineffective assistance in failing to preserve issues for appeal and remand for the court to attach portions of the record conclusively refuting this ground or for an evidentiary hearing. The record attached does not conclusively refute the allegations that failure to preserve various issues at trial constituted ineffective assistance of counsel. See Carratelli v. State, 961 So. 2d 312 (Fla.2007); Diaz v. State, 980 So. 2d 1275, 1278 (Fla. 4th DCA 2008) (in determining whether counsel is ineffective for failing to preserve issues for appeal, the proper standard is to determine “the effect of defense counsel’s deficient performance on the original trial outcome,” not on appeal). As to the remaining allegations, we affirm.
STEVENSON and MAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Carratelli v. State, 961 So. 2d 312 (Fla. 2007)
- State v. Larzelere, 979 So. 2d 195 (Fla. 2008)
- Burnside v. State, 656 So. 2d 241 (Fla. 5th DCA 1995)
- Diaz v. State, 980 So. 2d 1275 (Fla. 4th DCA 2008)