OSCAR PARKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Oscar Parks appealed the summary denial of his Rule 3.850 motion for post-conviction relief, claiming ineffective assistance of counsel regarding his right to testify and counsel's failure to advise him of a statutory presumption regarding stolen property. The court reversed and remanded on two related claims while affirming the denial of remaining claims.
The court reversed and remanded for an evidentiary hearing on Parks's claims regarding counsel's misadvice about his right to testify and failure to advise about the statutory presumption, as these claims warranted further review given that no evidence was offered to rebut the presumption and the jury acquitted Parks of burglary.
[1] A defendant's claim that counsel misadvised him regarding his right to testify warrants further review when coupled with a claim that counsel failed to advise of a statut…
[2] Proof of possession of recently stolen property, unless satisfactorily explained, gives rise to an inference that the possessor knew or should have known the property was…
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Join FLexlaw to unlock all legal intelligence“[P]roof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.”
Establishes the statutory presumption under section 812.022(2) that is central to Parks's claim that his testimony was critical to his defense.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceParks was charged with burglary, dealing in stolen property, and false verification of ownership. The jury acquitted him of burglary but convicted him…
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Oscar Parks seeks review of an order that summarily denied his multi-issue Florida Rule of Criminal Procedure 3.850 motion. We reverse and remand for further review of two related points and affirm the denial of the remaining claims.
Parks was charged with burglary, dealing in stolen property, and false verification of ownership. The jury found him not guilty of the burglary, but guilty of the other offenses. To convict Parks of dealing in stolen property one of the elements that the State had to prove was that Parks knew or should have known that the items were stolen. See § 812.019, Fla. Stat. (2003). Section 812.022(2), Florida Statutes (2003), provides that “[p]roof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.” Ward v. State, 40 So.3d 854, 856 (Fla. 4th DCA 2010).
With that background we consider Parks’s claims. Parks alleges that counsel misadvised him regarding his right to testify. Parks claims that counsel told him that if he testified, he would lose the “sandwich,” and the State would be allowed to reveal to the jury the exact nature of his prior convictions. Parks also claims that counsel failed to advise him about the “presumption” of section 812.022(2), and therefore his testimony explaining his possession of the stolen items was even more critical.
Parks alleges that he would have testified about how he received the property. Specifically, he was awakened by his house guest Lowry Kerry, and was given several pieces of jewelry. Kerry was living with Parks following Kerry’s breakup with his fiancée. Kerry intimated that he had purchased the items before his breakup, and gave them to Parks as contribution to the living expenses given that he (Kerry) was unemployed.
These points warrant further review. Oisorio v. State, 676 So.2d 1363, 1364-65 (Fla.1996); Ferrer v. State, 2 So.3d 1111, 1112 (Fla. 4th DCA 2009). Regarding the substance of Parks’s testimony, it is significant that no other evidence was offered to rebut the statutory presumption and that the jury acquitted Parks of the burglary.
We reverse for the trial court to conduct an evidentiary hearing on the issues surrounding counsel’s “misadvice” regarding Parks’s right to testify coupled with the claim that counsel failed to advise of the statutory presumption. We affirm as to the other grounds raised.
GROSS, C.J., POLEN and GERBER, JJ., concur.
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Carver Askew v. State, 265 So. 3d 693 (Fla. 1st DCA 2019)…e nature of his past crimes and the State could go into the specifics of his prior record on cross-examination. Accepting Appellant’s allegations as true, this was a facially sufficient claim of ineffective assistance of counsel. See Parks v. State, 54 So. 3d 1079, 1080 (Fla. 4th DCA 2011); see also Joseph v. State, 214 So. 3d 741, 742 (Fla. 5th DCA 2017); Tyler v. State, 793 So. 2d 137, 141-42 (Fla. 2d DCA 2001). Because the trial court’s colloquy with Appellant regarding the waiver of his right to testify a…
Authorities Cited
- Oisorio v. State, 676 So. 2d 1363 (Fla. 1996)
- Ferrer v. State, 2 So. 3d 1111 (Fla. 4th DCA 2009)
- Jawara Ward v. State, 40 So. 3d 854 (Fla. 4th DCA 2010)