MICHAEL D. GEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellant challenged the trial court's summary denial of his Rule 3.850 motion for postconviction relief based on ineffective assistance of counsel. The appellate court reversed, finding that the appellant stated legally sufficient claims that counsel twice failed to file notices of expiration of speedy trial time as required by Florida Rule of Criminal Procedure 3.191.
The appellant stated legally sufficient claims under both prongs of the Strickland test. The trial court's summary denial was reversed because the trial court failed to refute the appellant's claims with record attachments that conclusively rebutted them.
[1] To establish ineffective assistance of counsel, a defendant must demonstrate that counsel's performance fell below a reasonable professional standard and that this defici…
[2] Allegations of ineffective assistance of counsel must be supported by specific facts that are not conclusively rebutted by the record.
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Join FLexlaw to unlock all legal intelligence“To show ineffective assistance of counsel, the appellant must show that counsel's performance was outside the wide range of reasonable professional assistance, and that such conduct in fact prejudiced the outcome of the proceedings.”
Establishes the two-prong Strickland test applicable to ineffective assistance of counsel claims.
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Join FLexlaw to unlock all legal intelligenceThe appellant claimed his trial counsel failed to file a notice of expiration of speedy trial time on two occasions before moving to dismiss on speedy…
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The appellant challenges the trial court’s summary denial of his motion for postcon-viction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, in which the appellant claimed to have suffered ineffective assistance of counsel because counsel failed to file a notice of expiration of speedy trial time. We reverse and remand the trial court’s summary denial of the appellant’s claim.
To show ineffective assistance of counsel, the appellant must show that counsel’s performance was outside the wide range of reasonable professional assistance, and that such conduct in fact prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687-88, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Cherry v. State, 659 So.2d 1069, 1072 (Fla.1995); Betts v. State, 792 So.2d 589, 589-90 (Fla. 1st DCA 2001). The appellant must allege specific facts which are not conclusively rebutted by the record and which demonstrate that such deficiency in counsel’s performance prejudiced the defendant. Betts, 792 So.2d at 590.
As to the first prong of Strickland, the appellant alleged that counsel twice failed to file a notice of expiration of speedy trial time prior to moving for dismissal on speedy trial grounds, as required by Florida Rule of Criminal Procedure 3.191. As to the second prong, the appellant alleged that the trial judge expressed doubt about finding a jury during the rule 3.191 recapture period, but denied the motion to dismiss because defense counsel had failed to follow the proper procedure. See Gee v. State, 954 So.2d 83 (Fla. 1st DCA 2007). We conclude the allegations are sufficient to state a legally sufficient claim. See e.g. Brown v. State, 829 So.2d 975, 976 (Fla. 1st DCA 2002); Greeson v. State, 729 So.2d 397 (Fla. 1st DCA 1998). Because the trial court did not refute this claim with record attachments, the trial court’s summary denial of the appellant’s ineffective assistance of counsel claim for failing to file a demand for speedy trial is reversed and remanded for record attachments that conclusively refute his claim, or for further proceedings.
REVERSED.
WOLF, KAHN, and VAN NORTWICK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hammond v. State, 34 So. 3d 58 (Fla. 4th DCA 2010)…es not allege that the State could not have brought him to trial within the recapture window). Hammond, by contrast, relies on First District cases in which the court has required evidentiary hearings on this type of claim. See, e.g., Gee v. State, 13 So. 3d 68 (Fla. 1st DCA 2009); Burke v. State, 855 So. 2d 207 (Fla. 1st DCA 2003); Brown v. State, 829 So. 2d 975 (Fla. 1st DCA 2002). The movants in the above cases, however, specified some reasonable basis to conclude that the failure to move for speedy tri…
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Smith v. State, 213 So. 3d 722 (Fla. 2017)…on Fifth Amendment grounds since charges were pending 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 b…
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Renato R. Remak, Jr. v. State, 142 So. 3d 3 (Fla. 2d DCA 2014)…claim under rule 3.191, prejudice to the movant may be apparent. For example, an attorney’s failure to comply with specific procedural requirements when asserting the right may undermine confidence in the outcome of the proceeding. See Gee v. State, 13 So. 3d 68, 69 (Fla. 1st DCA 2009) (reversing summary denial where the movant alleged that counsel twice failed to file a notice of expiration of speedy trial time prior to moving for dismissal on speedy trial grounds, as required by Florida Rule of Criminal P…
Previewing 3 of 4 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)
- Cherry v. State, 659 So. 2d 1069 (Fla. 1995)
- Betts v. State, 792 So. 2d 589 (Fla. 1st DCA 2001)
- Greeson v. State, 729 So. 2d 397 (Fla. 1st DCA 1998)
- D.W.A. v. State, 954 So. 2d 83 (Fla. 5th DCA 2007)
- Brown v. State, 829 So. 2d 975 (Fla. 1st DCA 2002)