BRANDON BISHOP, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brandon Bishop appeals the summary denial of his rule 3.850 post-conviction motion for ineffective assistance of counsel. The appellate court found that three of his five preserved claims require an evidentiary hearing because they are legally sufficient and not conclusively refuted by the record, while affirming the denial of his remaining claims.
The court held that the three identified claims are legally sufficient and not conclusively refuted by the record, entitling Bishop to an evidentiary hearing on those claims. The remaining claims were affirmed on summary denial without comment.
[1] A claim raised in a rule 3.850 motion for post-conviction relief must be granted an evidentiary hearing if it is legally sufficient and not conclusively refuted by the re…
[2] When reviewing the summary denial of a rule 3.850 motion without an evidentiary hearing, a court must accept the defendant's factual allegations to the extent they are no…
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Join FLexlaw to unlock all legal intelligence“To uphold the trial court's summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record. Further, where no evidentiary hearing is held below, we must accept the defendant's factual allegations to the extent they are not refuted by the record.”
Establishes the standard of review for post-conviction ineffective assistance claims on summary denial
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBishop was convicted by jury trial in 2009 of attempted first degree murder and sentenced to ninety-nine years in prison. His conviction and sentence …
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Brandon Bishop appeals the summary denial of his rule 3.850 motion for post-conviction relief. We conclude that three of Bishop’s claims require an evidentiary hearing because they are legally sufficient and not conclusively refuted by the record provided. We affirm the denial of Bishop’s remaining claims without comment.
Following a jury trial in 2009, Bishop was convicted of attempted first degree murder and sentenced to ninety-nine years in prison. We affirmed the conviction and sentence on direct appeal. Bishop v. State, 100 So.3d 1192 (Fla. 4th DCA 2012). Bishop timely filed a rule 3.850 motion, which the trial court summarily denied based on the State’s response. Only five of the original eleven claims of ineffective assistance of counsel are preserved on appeal. See Hammond v. State, 34 So.3d 58, 59 (Fla. 4th DCA 2010).
Our standard of review is well-established:
To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record. Further, where no evidentiary hearing is held below, we must accept the defendant’s factual allegations to the extent they are not refuted by the record.
Peede v. State, 748 So.2d 253, 257 (Fla. 1999) (citation omitted) (citing Lightbourne v. Dugger, 549 So.2d 1364, 1365 (Fla. 1989)). We are cognizant that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000). However, such a determination generally requires an evidentiary hearing. Washington v. State, 187 So.3d 244 (Fla. 4th DCA 2015).
We conclude that Bishop is entitled to an evidentiary hearing on the following three claims: (1) counsel was ineffective for failing to move to disqualify the trial judge on the ground that he had improper communications with the victim’s family; (2) counsel was ineffective for failing to have Bishop’s competency evaluated at the time of the trial; and (3) counsel was ineffective for failing to adequately advise Bishop regarding his right to exclude evidence of his invocation of his right to counsel upon arrest. These claims are legally sufficient and are not conclusively refuted by the record provided.
We therefore reverse and remand for an evidentiary hearing as to the three claims set forth above. We affirm the summary denial of Bishop’s remaining claims without comment.
Affirmed in part, Reversed in part, and Remanded.
TAYLOR, FORST and KLINGENSMITH, JJ., concur.
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Casanas v. State (Fla. 4th DCA 2020)…McLin v. State, 827 So. 2d 948, 955 (Fla. 2002) (“[S]ummary denial is rarely appropriate if the trial court needs to assess the credibility of the new testimony.” (quoting Murrah v. State, 773 So. 2d 622, 623 (Fla. 1st DCA 2000))); Bishop v. State, 219 So. 3d 83, 84 (Fla. 4th DCA 2017); Coley v. State, 74 So. 3d 184, 185 (Fla. 2d DCA 2011). The State has not shown that the record supports summary denial of claim 5. Accordingly, we reverse and remand for further proceedings on claim 5. Reversed and remand…
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State v. Bishop (Fla. 4th DCA 2020)…ve for failing to adequately advise Bishop regarding his right to exclude evidence of his invocation of his right to counsel upon arrest. These claims are legally sufficient and are not conclusively refuted by the record provided. Bishop v. State, 219 So. 3d 83, 84 (Fla. 4th DCA 2017). At the evidentiary hearing, trial counsel testified he failed to move to exclude or suppress Defendant’s request for counsel, and alleged it was not a strategic decision. Trial counsel believed that this failure prejudiced…
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Fundora-Martinez v. Sec'y Dep't of Corr. (Duval County) (M.D. Fla. 2025)…2) his innate confidence that, in light of his constitutional rights, he would prevail at trial. Thus, the record conclusively refutes the allegations contained in Grounds Four and Five of Defendant's motion. See Bishop v. State, 219 So. 3d 83, 84 (Fla. 4th DCA 2017) (per curiam); Kelley v. State, 109 So. 3d 811, 812-13 (Fla. 1st DCA 2013); Henry v. State, 920 So. 2d 1245, 1246 (Fla. 5th DCA 2006). As such, the Court denies Grounds Four and Five. Id. at 95-97 (record cita…
Authorities Cited
- Occhicone v. State, 768 So. 2d 1037 (Fla. 2000)
- Peede v. State, 748 So. 2d 253 (Fla. 1999)
- Hammond v. State, 34 So. 3d 58 (Fla. 4th DCA 2010)
- Lightbourne v. Dugger, 549 So. 2d 1364 (Fla. 1989)
- Bishop v. State, 100 So. 3d 1192 (Fla. 4th DCA 2012)
- Washington v. State, 187 So. 3d 244 (Fla. 4th DCA 2016)