ROBERT BURKELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Burkell appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion challenging his first-degree murder conviction. The Fourth District Court of Appeal affirms most of the trial court's rulings but reverses and remands on two related claims regarding ineffective assistance of counsel based on trial counsel's failure to present evidence of Burkell's physical limitations.
The court held that Burkell's allegations were facially sufficient to state a prima facie claim for ineffective assistance of counsel and reversed the trial court's summary denial, finding the record did not conclusively show that Burkell was not physically impaired, as the trial court's reliance on Burkell's remodeling work was insufficient without clear evidence he performed the actual labor.
[1] A defendant's allegations of ineffective assistance of counsel are facially sufficient to state a prima facie claim if they allege counsel failed to present medical evide…
[2] On appeal from a summary denial of a motion for postconviction relief, an appellate court must reverse unless the record conclusively shows the appellant is entitled to n…
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Join FLexlaw to unlock all legal intelligence“Unless the [postconviction] record shows conclusively that the appellant is entitled to no relief.”
States the standard of review for summary denial of Rule 3.850 motions on appeal
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Join FLexlaw to unlock all legal intelligenceRobert Burkell was convicted by jury of first-degree murder in the death of Charles Bertheas, who lived in Burkell's home. The victim died from blunt …
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Robert Burkell challenges the denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court summarily denied a majority of Bur-kell’s claims and held an evidentiary hearing to address others. We affirm on all but two related points and reverse and remand for further review.
Robert Burkell was indicted for the first degree murder of Charles Bertheas. Ber-theas lived in a room in the Burkell home. A jury found Burkell guilty as charged and the trial court sentenced him to life in prison without parole. The jury made a special finding that Burkell was guilty of premeditated, as opposed to felony, murder.
The facts of the case are set forth in this Court’s opinion that affirmed Burkell’s direct appeal and addressed the denial of his motion for judgment of acquittal. See Burkell v. State, 992 So.2d 848 (Fla. 4th DCA 2008). Significantly, with respect to the victim’s injuries and cause of death, the opinion states:
In addition to multiple lacerations and extensive bruising, the victim had been struck in the eye with sufficient force to rupture it. Dr. Price found extensive fractures to the victim’s facial bones. The anterior base of his skull was also crushed. The cause of death was blunt force trauma to the head caused by between fourteen and eighteen blows, including massive blows to the frontal area.
Within points one and two of his motion, Burkell alleged trial counsel was ineffective for failing to present medical evidence that he was physically incapable of inflicting the types of blows that must have caused the victim’s fatal injuries. He alleged that evidence of his physical limitations precluded him from using any weapon, be it heavy or light, or even his bare hands.
Burkell alleged that he has physical limitations with his right hand, left wrist, and *258shoulder, all of which were verifiable through medical records. His allegations are facially sufficient to state a prima facie claim for ineffective assistance of counsel. See Lopez v. State, 773 So.2d 1267, 1268 (Fla. 5th DCA 2000).
On appeal from a summary denial of a rule 3.850 motion, this Court must reverse “unless the [postconviction] record shows conclusively that the appellant is entitled to no relief.” Fla. R. App. P. 9.141(b)(2)(D). When summarily denying this claim, the trial court looked to comments in the record to show that Burkell was not physically impaired because he “converted the family room into a bedroom and living room area for Mr. Bertheas.” The records before this Court do not clearly reflect that Burkell performed the physical labor associated with the remodeling.
On remand, the trial court may either attach additional portions of the record, if any, refuting appellant’s allegations or hold an evidentiary hearing on this claim.
Affirmed in part, Reversed in part, and Remanded with directions.
GROSS, TAYLOR and MAY, JJ., concur.
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Citator
Authorities Cited
- Burkell v. State, 992 So. 2d 848 (Fla. 4th DCA 2008)
- Lopez v. State, 773 So. 2d 1267 (Fla. 5th DCA 2000)