LARRY BURRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Larry Burris appealed the denial of his Rule 3.850 post-conviction motion claiming ineffective assistance of counsel. The court affirmed the denial of two grounds but reversed and remanded one ground regarding counsel's alleged failure to introduce evidence that the stolen property's value was below the statutory threshold for the charged offense.
The court affirmed the summary denial of grounds one and three but reversed and remanded ground two because Burris alleged an unrefuted claim that counsel failed to introduce evidence of the property's actual value, requiring the trial court to either attach records conclusively refuting the allegation or conduct an evidentiary hearing.
[1] A motion for postconviction relief must be granted or denied based on whether the allegations are conclusively refuted by the record, or if not, an evidentiary hearing mu…
[2] Allegations in a motion for postconviction relief are accepted as true when no evidentiary hearing is held, unless conclusively refuted by the record.
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“When no evidentiary hearing is held [on a motion for postconviction relief,] a movant's allegations are accepted as true unless they are conclusively refuted by the record”
Establishes the standard of review for post-conviction motions decided summarily without an evidentiary hearing
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Join FLexlaw to unlock all legal intelligenceBurris was convicted of second-degree grand theft of a John Deere front-end loader and sentenced to ten years imprisonment plus five years probation. …
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The appellant challenges the denial of his motion for posteonviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the summary denial of grounds one and three of the appellant’s motion. However, we reverse and remand the denial of ground two for the trial court to attach records conclusively refuting the appellant’s allegations or to conduct an evidentiary hearing.
Following a trial, the appellant was convicted of second-degree grand theft (property valued at $20,000 or more, but less than $100,000) and sentenced to ten years’ imprisonment to be followed by five years on probation. In ground two of his post-conviction motion, the appellant asserts that counsel was ineffective for failing to introduce evidence that the value of the stolen property, a John Deere “front end loader,” was less than $20,000 at the time of the taking. The appellant alleged that a John Deere representative set the value at no more than $16,250 at the time of the taking. Because this Court must treat all unrefuted allegations as true, see Stancle v. State, 917 So.2d 911 (Fla. 4th DCA 2005) (“When no evidentiary hearing is held [on a motion for postconviction relief,] a mov-ant’s allegations are accepted as true unless they are conclusively refuted by the record”), the appellant has alleged a facially sufficient claim for relief which is not refuted by the record. See Thurman v. State, 892 So.2d 1085 (Fla. 2d DCA 2004).
Accordingly, we AFFIRM the summary denial of grounds one and three of the appellant’s motion, but REVERSE and REMAND the denial of ground two for the court to attach portions of the record conclusively refuting the appellant’s allegations or to hold an evidentiary hearing.
DAVIS, VAN NORTWICK, and CLARK, JJ., concur.
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Citator
Cited By
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Allen v. State (Fla. 1st DCA 2023)
Authorities Cited
- Stancle v. State, 917 So. 2d 911 (Fla. 4th DCA 2005)
- Thurman v. State, 892 So. 2d 1085 (Fla. 2d DCA 2004)