NORMAN J. COLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Norman Cole appealed the denial of his Rule 3.850 motion for postconviction relief, claiming ineffective assistance of counsel based on conflicts of interest, involuntary plea, and failure to file evidentiary motions. The appellate court reversed the summary denials of several grounds as facially insufficient and remanded for amendment or evidentiary hearing.
Grounds one, two, and seven were reversed and remanded with leave to amend as facially insufficient. Ground three was reversed and remanded for the trial court to either attach record portions refuting it or hold an evidentiary hearing. All other claims were affirmed.
[1] A claim of ineffective assistance of counsel based on a conflict of interest requires an allegation of an actual conflict and that the conflict adversely affected counsel…
[2] A postconviction motion alleging that a plea was unlawfully induced is facially sufficient when read in conjunction with a statement that the defendant would not have tak…
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Join FLexlaw to unlock all legal intelligence“To establish an ineffectiveness claim based on a conflict of interest, a defendant must show that there was an actual conflict of interest and that the conflict adversely affected counsel's performance.”
Establishes the legal standard for ineffective assistance based on conflict of interest that Cole failed to meet in grounds one and two.
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Join FLexlaw to unlock all legal intelligenceNorman Cole filed a postconviction motion asserting that his trial counsel provided ineffective assistance due to conflicts of interest, that his plea…
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Norman J. Cole appeals the order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We reverse the postconviction court’s summary denial of grounds one, two, three, and seven as facially insufficient. We affirm without comment the postconviction court’s denial of all other claims for relief.
In grounds one and two of his motion, Mr. Cole asserted that his trial counsel provided ineffective assistance because of conflicts of interest. However, Mr. Cole did not allege the existence of an actual conflict or that his interests were compromised. See Clayton v. State, 12 So.3d 1259, 1260 (Fla. 2d DCA 2009) (“To establish an ineffectiveness claim based on a conflict of interest, a defendant must show that there was an actual conflict of interest and that the conflict adversely affected counsel’s performance.”). For this reason, the postconviction court summarily denied these claims as legally insufficient. We agree that the claims were legally insufficient.
In ground three, Mr. Cole complained that his plea was involuntary because it was “unlawfully induced.” In addition, at the conclusion of his motion, Mr. Cole asserted: “I would like to be entitled to effective counsel [and] giving [sic] a chance to go to trial. If I had the appropriate counsel the first time[,] I never would’ve took [sic] a deal. I want to go to trial.” Mr. Cole’s motion alleged sufficient facts about counsel’s deficient performance. The allegations in ground three— when read together with the statement at the conclusion of the motion — are facially sufficient. Cf. Smith v. State, 826 So.2d 322, 323 (Fla. 2d DCA 2002) (finding that the defendant alleged a facially sufficient claim where the defendant alleged that counsel told him that a trial on a charge of possession of a firearm by a convicted felon would automatically result in a consecutive sentence and that he would not have entered the plea but for counsel’s misadvice).
Ground seven alleged that counsel was ineffective because he did not file mo*175tions to exclude certain evidence as requested by Mr. Cole. The postconviction court properly denied this claim as facially insufficient because Mr. Cole did not provide sufficient information about the proposed motions to determine whether counsel’s performance was deficient. See Ezell v. State, 648 So.2d 1257, 1258 (Fla. 3d DCA 1995) (holding that the defendant could not show deficient performance if the evidence the defendant claims counsel should have sought to exclude was admissible).
However, in light of the recent opinion in Spera v. State, 971 So.2d 754 (Fla.2007), we reverse the summary denials of grounds one, two, and seven and remand with instructions to strike these grounds with leave to amend within a reasonable time. See Thacker v. State, 990 So.2d 1223, 1223 (Fla. 1st DCA 2008) (following Spera); see also Deck v. State, 985 So.2d 1234, 1238 (Fla. 2d DCA 2008) (“Nothing in the limited record before this court demonstrates that [the postconviction mov-ant] could not allege sufficient facts or prejudice in connection with this claim if given the opportunity to amend his motion.”). We also reverse the summary denial of ground three of the motion and remand for the postconviction court to either attach the relevant portions of the record that conclusively refute ground three or to grant an evidentiary hearing on this ground. In all other respects, we affirm the postconviction court’s order.
Affirmed in part, reversed in part, and remanded with directions.
SILBERMAN, J., Concurs.
KELLY, J., Dissents.
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Citator
Cited By
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Mendez-Domingo v. State, 238 So. 3d 382 (Fla. 2d DCA 2017)…fectiveness claim based on a conflict, a postconviction movant must allege sufficient facts to show both an actual conflict of interest and that the actual conflict adversely affected counsel's representation of the movant. See, e.g., Cole v. State, 35 So. 3d 173, 174 (Fla. 2d DCA 2010) (finding claim legally insufficient where movant "did not allege the existence of an actual conflict or that his interests were compromised"). Although Mr. Mendez-Domingo's rule 3.850 motion alleged that his counsel at some…
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Sutton v. State, 985 So. 2d 1234 (Fla. 5th DCA 2008)
- Morgan v. State, 826 So. 2d 322 (Fla. 1st DCA 2001)
- Ezell v. State, 648 So. 2d 1257 (Fla. 3d DCA 1995)
- Thacker v. State, 990 So. 2d 1223 (Fla. 1st DCA 2008)
- Yancy B. Clayton v. State, 12 So. 3d 1259 (Fla. 2d DCA 2009)