JOHN WILLIS SHIRLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Willis Shirley appealed a postconviction denial of his motion for relief, arguing his trial counsel was ineffective for failing to seek acquittal on count 20 where the State allegedly failed to prove the victim was under sixteen. The appellate court found the postconviction court's factual findings insufficient and reversed and remanded for proper consideration.
The appellate court reversed the summary denial and remanded because the postconviction court's reliance on victim testimony was not supported by record evidence actually establishing the victim's date of birth. The postconviction court may summarily deny the claim on remand only if it attaches conclusive record evidence refuting Shirley's claim.
[1] A postconviction court may summarily deny a claim of ineffective assistance of counsel if record evidence conclusively refutes the claim.
[2] Ineffective assistance of counsel claims require a showing that counsel's performance was deficient and that the deficient performance prejudiced the defense.
Previewing 2 of 4 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“The victim "testified that his date of birth is October 16, 1982, and that the events at issue occurred while he visited the Defendant's home between April 1998 and September 1998."”
The postconviction court's characterization of the evidence it relied upon to deny relief
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Join FLexlaw to unlock all legal intelligenceShirley was convicted on count 20, which required proof that the victim was less than sixteen years old. The victim testified his date of birth was Oc…
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SILBERMAN, Judge.
John Willis Shirley appeals a final order denying his motion and amended motion for postconviction relief and earlier nonfi-nal orders that denied, in part, his motion and amended motion. We affirm without discussion the postconviction court’s denial of relief on each of Shirley’s claims, save one. In ground 1 of the motion and amended motion, Shirley argued, among other things, that his trial counsel was ineffective for failing to seek a judgment of acquittal with respect to count 20 of the charges against him. Shirley contended that the State failed to prove that the victim of the crime was less than sixteen years old at the time of the offense. In summarily denying relief, the postconviction court stated that the victim “testified that his date of birth is October 16, 1982, and that the events at issue occurred while he visited the Defendant’s home between April 1998 and September 1998.” Based on this testimony, the court concluded that the State had established that the victim was under sixteen at the time of the alleged offense and thus counsel could not be deemed ineffective.
Our review of the excerpt of the victim’s testimony attached to the postconviction court’s order does not fully support the court’s factual findings. The attachment reflects that the incidents occurred between April 1998 and September 1998, but it does not establish the victim’s date of birth. Accordingly, we reverse the summary denial of ground 1 as to count 20 and remand for further proceedings. The postconviction court may again summarily deny relief on this claim if it attaches record evidence that conclusively refutes the claim. See Fla. R.Crim. P. 3.850(d).
Affirmed in part, reversed in part, and remanded.
CASANUEVA and STRINGER, JJ., Concur.