PHYLLIS BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Phyllis Brown appeals the summary denial of her Rule 3.850 motion for postconviction relief asserting six claims of ineffective assistance of trial counsel. The appellate court reversed the denial of two grounds as legally insufficient and remanded for further proceedings, while affirming the denial of the remaining grounds.
Grounds one and three were legally insufficient and reversed with instructions to allow amendment; ground two was improperly denied without addressing the merits and was remanded for evidentiary consideration; grounds four, five, and six were affirmed in the postconviction court's denial.
[1] A claim of ineffective assistance of counsel is legally insufficient if the movant fails to state how the admission of evidence prejudiced them.
[2] A claim of ineffective assistance of counsel is facially insufficient if the movant does not specify how counsel was ineffective or how they were prejudiced.
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Join FLexlaw to unlock all legal intelligence“Appellant does not state how the admission of this evidence prejudiced her, making ground one legally insufficient.”
Establishes that claims must specify both ineffective conduct and resulting prejudice
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Join FLexlaw to unlock all legal intelligenceBrown was convicted in the trial court. She filed a postconviction relief motion asserting six grounds of ineffective assistance of counsel, including…
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Appellant, Phyllis Brown, appeals the summary denial of her motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, in which she set forth six claims of ineffective assistance of trial counsel.
In ground one, Appellant asserted that trial counsel did not properly prepare for trial. For example, he allowed the State to enter exhibits into evidence that defense counsel did not previously see. Appellant does not state how the admission of this evidence prejudiced her, making ground one legally insufficient. We reverse the trial court’s denial of ground one with instructions to afford Appellant at least one opportunity to amend the claim to make it legally sufficient. Fla. R. Crim. P. 3.850(f)(3).
In ground two, Appellant points out that during deliberation, the jury asked to review the victim’s testimony. The trial court answered that “there [was] no transcript.” Appellant claims that her counsel was ineffective by failing to object to the court’s response, and by failing to request that the judge inform the jury that the court reporter could read back the desired testimony. See Romero v. State, 169 So.3d 1261, 1263 (Fla. 5th DCA 2015) (holding that a challenge to the trial court’s refusal to consider a read-back of testimony must be preserved by objection). In ruling on the rule 3.850 motion, the postconviction court did not address this second ground on the merits nor did it attach records conclusively refuting this claim. Accordingly, we reverse the postconviction court’s denial of ground two and remand so that the postconviction court can address the merits of the claim and either attach records conclusively refuting the claim or conduct an evidentiary hearing.
In ground three, Appellant argues that she was dissatisfied with how defense counsel handled witness Newton; however, she does not specify how her counsel was ineffective or how she was prejudiced. We find that ground three is facially insufficient. Thus, the postconviction court’s denial is reversed, and we remand to provide Appellant the opportunity to amend this claim to make it legally sufficient. Fla. R. Crim. P. 3.850(f)(3).
We affirm the postconviction court’s denial of Appellant’s grounds four, five, and six without further discussion.
AFFIRMED IN PART, REVERSED IN PART, REMANDED WITH INSTRUCTIONS.
LAWSON, C.J., ORFINGER and EDWARDS, JJ., concur.