RODGER N. BUTLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed summary denial of most post-conviction ineffective assistance claims but reversed and remanded one claim regarding prosecutor's statements because the record did not conclusively refute it.
When a post-conviction motion is denied without an evidentiary hearing, it must be reversed and remanded unless the record conclusively refutes the defendant's allegations.
[1] A post-conviction motion alleging ineffective assistance of counsel must be reversed and remanded for an evidentiary hearing when the record does not conclusively refute…
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Join FLexlaw to unlock all legal intelligence“unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief”
Standard for reviewing post-conviction motions denied without evidentiary hearing under Florida Rule of Appellate Procedure 9.141(b)(2)(A) & (D)
Rodger Butler appealed a trial court's summary denial of his post-conviction motion alleging ineffective assistance of trial counsel from a 2011 trial…
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Rodger N. Butler ’appeals the trial court’s summary denial of his motion for post-conviction relief alleging ineffective assistance of trial counsel during a trial in 2011. Upon consideration of his multiple arguments, we affirm the post-conviction order without additional comment, except for Mr. Butler’s second claim. We reverse and remand on his second claim, because the post-conviction order and attached records do not conclusively refute it.
In his second claim for post-conviction relief, Mr. Butler asserted that his trial counsel was ineffective for failing to object to certain statements made by the prosecutor in. his opening statement, at trial, and during closing. ‘When a motion for post-conviction relief under [rule 3.850] is granted or denied without an evidentiary hearing, ... unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate.relief.” Fla. R. App. P. 9.141(b)(2)(A) & (D); Smith v. State, 170 So.3d 124, 125 (Fla. 1st DCA 2015). In this case, we cannot determine from the record attachments whether the record conclusively refutes Appellant’s contention that trial counsel was ineffective for failing to object to "the prosecutor’s statements. Upon remand, the trial court may either grant an evidentiary hearing, or enter summary denial a second time and attach portions of the record that conclusively refute Appellant’s allegations.
*48AFFIRMED IN PART and REVERSED IN PART.
WOLF, OSTERHAUS, and KELSEY, JJ., concur.