LARRY L. ARMSTRONG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2009-11-10
No. 1D09-2007
HAWKES, C.J., BENTON and THOMAS, JJ, concur.
22 So. 3d 695 Florida District Court of Appeal, First District (2009)

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Synopsis

Armstrong appealed the trial court's summary denial of postconviction ineffective assistance of counsel claims. The appellate court previously reversed five claims for insufficient record, and now on appeal of those five claims, the court reverses on two grounds because the record does not conclusively refute Armstrong's allegations.


Holding

The court affirmed the summary denial of the first three ineffective assistance of counsel claims but reversed the summary denial of the fourth and fifth claims because the record does not conclusively show Armstrong is not entitled to relief on those grounds.


Headnotes

[1] A defendant seeking postconviction relief based on ineffective assistance of counsel must demonstrate that counsel's performance was deficient and that there is a reasona…

[2] A trial court's summary denial of postconviction relief must be reversed when the record does not conclusively show the defendant is not entitled to relief on a claim of…

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Key Quotes

“To demonstrate ineffective assistance of counsel, Appellant must show that (1) counsel's performance was deficient; and (2) there is a reasonable probability that the outcome of the proceeding would have been different had counsel not performed deficiently.”

Establishes the two-prong test from Strickland v. Washington required to prove ineffective assistance of counsel claims

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Facts & Procedural History

Armstrong previously appealed a trial court's order denying his motion for postconviction relief raising six ineffective assistance of counsel claims.…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant previously appealed the trial court’s order summarily denying his motion for postconviction relief and supplemental motions thereto, which together raised six claims for relief. In Armstrong v. State, 995 So.2d 597 (Fla. 1st DCA 2008), this court reversed five of those claims as unrefuted by the record. Appellant now appeals the trial court’s order summarily denying the five claims. We reverse on two of those grounds as a result of the limited record before us.

Appellant argued five grounds of ineffective assistance of counsel below. To demonstrate ineffective assistance of counsel, Appellant must show that (1) counsel’s performance was deficient; and (2) there is a reasonable probability that the outcome of the proceeding would have been different had counsel not performed defi-ciently. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

We affirm without further .comment the trial court’s summary denial of Appellant’s first three grounds of ineffective assistance of counsel. Because the record does not conclusively show that Appellant is not entitled to relief on the remaining two grounds, however, we are constrained to reverse.

In Appellant’s fourth ground alleging ineffective assistance of counsel, he argued below that counsel ineffectively failed to object to the introduction at trial of an audiotape that the State did not provide during discovery. Appellant alleged that his counsel’s failure to object prejudiced his case because the audiotape refutes his claim of self defense. The record before us does not contain any evidence refuting Appellant’s claim.

In his fifth ground, Appellant argued that counsel ineffectively failed to *697inform him that the State had an incriminating audiotape prior to rejecting the State’s plea offer. See Cottle v. State, 733 So.2d 963, 969 (Fla.1999). The trial court did not comment on Appellant’s claim but, rather, attached the State’s response, in which the Assistant State Attorney explained, “I recall no such offer.” No evidence in the record, however, refutes Appellant’s claim.

Accordingly, we reverse the trial court’s summary denial of Appellant’s fourth and fifth grounds of ineffective assistance of counsel. Because the trial court has twice denied Appellant’s motion for postconviction relief, it should hold an evidentiary hearing on these claims and grant relief, if required.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions consistent with this opinion.

HAWKES, C.J., BENTON and THOMAS, JJ, concur.


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