GERALD HAYES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gerald Hayes appealed the summary denial of his post-conviction motion for ineffective assistance of counsel (Rule 3.850). The court affirmed the denial of two grounds but reversed the summary denial of ground two, holding that Hayes's claim that counsel misadvised him against testifying was facially insufficient and should have been struck with leave to amend rather than summarily denied.
The post-conviction court should have struck Hayes's ground-two claim with leave to amend rather than summarily denying it, because although the record clearly established Hayes voluntarily agreed with counsel's recommendation not to testify, the claim was facially insufficient because Hayes did not allege what he would have testified to, leaving the second question—whether counsel's advice was deficient—incapable of being conclusively refuted by the record.
[1] A postconviction court should strike a claim of ineffective assistance of counsel with leave to amend if the claim is facially insufficient and cannot be conclusively ref…
[2] When a defendant claims ineffective assistance of counsel for being advised not to testify, the court must first determine if the defendant voluntarily agreed with counse…
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Join FLexlaw to unlock all legal intelligence“The first step in determining whether there was ineffective assistance of counsel where defendant claims he would have testified is to determine whether the defendant voluntarily agreed with counsel not to take the stand. If that is established, then the trial court must answer the separate and second question which is whether counsel's advice to defendant "even if voluntarily followed, was nevertheless deficient because no reasonable attorney would have discouraged [defendant] from testifying."”
Establishes the two-step test for evaluating ineffective assistance claims based on advice not to testify.
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Join FLexlaw to unlock all legal intelligenceHayes was convicted of sale of cocaine and possession of cocaine and presented a misidentification defense at trial. Hayes claimed his trial counsel i…
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Gerald Hayes appeals the summary denial of his motion for postconviction relief, wherein he raised three grounds of ineffective assistance of counsel pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the postconviction court’s denial of grounds one and three without further discussion. However, we conclude that ground two was facially insufficient, and therefore the postconviction court should have struck the claim with leave to amend pursuant to Spera v. State, 971 So.2d 754 (Fla.2007), rather than entering a summary denial.
Hayes, who was convicted of sale of cocaine and possession of cocaine, presented a defense of misidentification at trial. He alleged in ground two of his motion that his trial counsel was ineffective for misadvising him not to testify in his own defense. Although Hayes claimed that he was prejudiced by his counsel’s actions, he did not allege what he would have testified to or how his testimony would have affect*231ed the result of the proceeding. The post-conviction court summarily denied this claim by citing to portions of the trial transcript in which Hayes stated in a colloquy to the court that he felt it was in his best interest not to testify and that he was satisfied with trial counsel’s help and advice.
The first step in determining whether there was ineffective assistance of counsel where defendant claims he would have testified is to determine whether the defendant voluntarily agreed with counsel not to take the stand. If that is established, then the trial court must answer the separate and second question which is whether counsel’s advice to defendant “even if voluntarily followed, was nevertheless deficient because no reasonable attorney would have discouraged [defendant] from testifying.”
Simon v. State, 47 So.3d 883, 885 (Fla. 3d DCA 2010) (quoting Lott v. State, 931 So.2d 807, 819 (Fla.2006)).
In Simon, the defendant maintained that his counsel misadvised him about testifying at trial and alleged what he would have testified to but for counsel’s misad-vice. The postconviction court summarily denied the defendant’s motion upon finding that the defendant voluntarily chose not to testify. However, the Third District determined that while the colloquy established that the defendant voluntarily agreed with counsel’s recommendation not to take the stand, an evidentiary hearing was still necessary to determine the second question of whether counsel’s advice was deficient. Id. at 886. Similarly, although the record is clear in this case that Hayes voluntarily agreed with counsel not to take the stand, the postconviction court failed to address the second question discussed in Simon and Lott. But unlike in Simon, the court did not have the benefit of what Hayes would have said to determine any alleged deficiency. Hence, the second part of Hayes’ claim was facially insufficient and could not be conclusively refuted by the record. Therefore, the postconviction court should have struck the claim with leave to amend pursuant to Spera, 971 So.2d at 761-62.
Accordingly, we reverse the denial of ground two and remand for the court to strike the claim with leave to amend within a period of time not to exceed thirty days. If Hayes files an amended motion on this ground, “the postconviction court may again summarily deny the claim if it is once again facially insufficient or if the court attaches portions of the record conclusively refuting his allegations.” Philip v. State, 14 So.3d 1243, 1244 (Fla. 2d DCA 2009).
Affirmed in part, reversed in part, and remanded.
ALTENBERND and WHATLEY, JJ., Concur.
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Loudermilk v. State, 106 So. 3d 959 (Fla. 4th DCA 2013)…oth the voluntariness of any waiver as well as the reasonableness of counsel’s advice not to testify in judging counsel’s effectiveness once challenged as to the advice. See also Simon v. State, 47 So. 3d 883, 886 (Fla. 3d DCA 2010); Hayes v. State, 79 So. 3d 230, 231 (Fla. 2d DCA 2012). We have previously recognized misadvice concerning the decision of a criminal defendant whether or not to testify in his own defense as raising a potentially colorable basis for finding ineffective assistance of counsel. Nel…
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Armistar Cole v. State, 89 So. 3d 993 (Fla. 2d DCA 2012)…But Cole has not set forth a facially sufficient claim because he has not alleged prejudice; i.e., what he would have testified to that would have changed the outcome of the proceeding in light of the other evidence against him. See Hayes v. State, 79 So. 3d 230, 231 (Fla. 2d DCA 2012). Because Cole’s claim was facially insufficient, the postconviction court should have dismissed the claim with leave for him to amend if he could do so in good faith. See Spera v. State, 971 So. 2d 754, 761 (Fla.2007). In cl…
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Chaz Bynum v. State (Fla. 2d DCA 2024)…two separate questions for the postconviction court to consider. The first is whether the defendant voluntarily agreed with counsel not to testify in his own defense." Roberts v. State, 307 So. 3d 808, 811 (Fla. 2d DCA 2018) (citing Hayes v. State, 79 So. 3d 230, 231 (Fla. 2d DCA 2012)). Bynum concedes that he voluntarily agreed not to testify. However, even if the defendant voluntarily agreed not to testify, "the postconviction court must also consider whether counsel's advice to the defendant was deficie…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Lott v. State, 931 So. 2d 807 (Fla. 2006)
- Clandyve Simon v. State, 47 So. 3d 883 (Fla. 3d DCA 2010)
- Philip v. State, 14 So. 3d 1243 (Fla. 2d DCA 2009)