DAMIAN SIMMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the summary denial of a Rule 3.850 postconviction relief motion and remanded for an evidentiary hearing on ineffective assistance of counsel claims regarding abandonment of self-defense, failure to investigate witnesses, and misadvice about a 40-year plea offer.
A trial court's summary denial of a Rule 3.850 motion must be reversed and remanded for an evidentiary hearing when the record does not conclusively refute claims of ineffective assistance of counsel.
[1] A trial court must remand a Rule 3.850 postconviction relief motion for an evidentiary hearing when the record does not conclusively refute claims of ineffective assistan…
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Join FLexlaw to unlock all legal intelligence“it is so obvious from the face of the record that trial counsel's strategy ... is very clearly a tactical decision well within the discretion of counsel”
The court noted that an evidentiary hearing may be unnecessary only if counsel's strategy is clearly a tactical decision within counsel's discretion, citing Hannon v. State.
Damian Simms appealed a summary denial of his postconviction relief motion, claiming his defense counsel provided ineffective assistance by abandoning…
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Damian Simms (“Appellant”) appeals the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Appellant argues defense counsel provided ineffective assistance by: (1) abandoning a self-defense theory; (2) failing to investigate and call various witnesses; and (3) misad-vising him with regard to two plea offers— the first for 15 years and the second for 40 years. We find, and the State properly concedes, that, the attached portions-of the record do not conclusively refute Appellant’s claims. We reverse and remand for either attachment of record excerpts conclusively refuting those claims or for an evidentiary hearing. With respect to claim 3, we find that the record conclusively demonstrates the 15-year plea .offer never materialized. Therefore, we remand on claim 3 only as it pertains to the 40-year plea offer. We note .that an eviden-tiary hearing may be necessary unless “it is so obvious from the face of the record that trial counsel’s strategy ... is very clearly a tactical decision well within the discretion of counsel.” Hannon v. State, 941 So.2d, 1109, 1138 (Fla.2006) (citing State v. Williams, 797 So.2d 1235, 1237-38 (Fla.2001)).
REVERSED and REMANDED with INSTRUCTIONS.
SAWAYA, WALLIS, and EDWARDS, JJ., concur.
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Citator
Cited By
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Stewart v. State, 219 So. 3d 273 (Fla. 5th DCA 2017)…ugh the trial court properly concluded Stewart’s motion was facially insufficient, it also denied Stewart’s claim on the merits. This denial was error. The trial court should have allowed Stewart sixty days to amend his motion. See Nazario v. State, 188 So. 3d 975, 976 (Fla. 5th DCA 2016) (holding. that when defendant files facially insufficient rule 3.801 motion, court must enter non-final,, non-appealable order allowing defendant sixty days to amend motion); see also Fla. R. Crim. P. 3.850(e). We reverse…
Authorities Cited
- Hannon v. State, 941 So. 2d 1109 (Fla. 2006)
- State v. Williams, 797 So. 2d 1235 (Fla. 2001)