KENNY MITCHELL, III, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE.
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The court held that the record did not conclusively refute the appellant's claim of ineffective assistance of counsel regarding the investigation of alibi witnesses and evidence.
Appellant sought post-conviction relief, alleging his counsel was ineffective for failing to investigate alibi witnesses, time cards, and surveillance…
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Appellant, Kenny Mitchell, III, appeals the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Appellant's motion made four claims of ineffective assistance of counsel below. We find that the record does not conclusively refute Appellant's first claim, but otherwise affirm.
In his first claim, Appellant alleged that his counsel was ineffective for failing to investigate four alibi witnesses, his time card, and video surveillance-all of which he claims would have established that he was at work at the time the crime was committed. The trial court summarily denied this claim finding that Appellant's counsel filed a disclosure of three of the four alibi witnesses before trial and filed a notice of intent to introduce employment records. According to the trial court, this demonstrated that Appellant's counsel did in fact investigate the alibi, and therefore the court concluded that the record conclusively refuted Appellant's claims.
We review the summary denial of a rule 3.850 motion de novo. Lebron v. State , 100 So.3d 132, 133 (Fla. 5th DCA 2012). The trial court must conduct an evidentiary hearing unless the allegations are facially insufficient, are conclusively refuted by the record, or are legally insufficient. Id.
While counsel's apparent intent to call three of the four alibi witnesses and use at *412least some employment records at trial may be relevant, we cannot conclude that this alone conclusively refutes Appellant's entire claim. We therefore reverse the summary denial as to this claim, and remand for the trial court to attach record evidence conclusively refuting Appellant's claim, or to hold an evidentiary hearing.
AFFIRMED in part; REVERSED in part; REMANDED.
ORFINGER, TORPY AND EISNAUGLE, JJ., concur.
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Snead v. State, 254 So. 3d 1119 (Fla. 5th DCA 2018)…der summarily denying the motion for postconviction relief. Therefore, we reverse and remand for the postconviction court either to attach additional records conclusively refuting the claim, or to hold an evidentiary hearing. See Mitchell v. State , 238 So. 3d 411, 412 (Fla. 5th DCA 2018). REVERSED AND REMANDED with instructions. COHEN, C.J., EDWARDS and EISNAUGLE, JJ., concur. Snead was charged with three crimes: robbery with a firearm; burglary of a dwelling while armed; and aggravated battery with a dea…
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Snead v. State (Fla. 5th DCA 2018)…er summarily denying the motion for postconviction relief. Therefore, we reverse and remand for the postconviction court either to attach additional records conclusively refuting the claim, or to hold an evidentiary hearing. See Mitchell v. State, 238 So. 3d 411, 412 (Fla. 5th DCA 2018). REVERSED AND REMANDED with instructions. COHEN, C.J., EDWARDS and EISNAUGLE, JJ., concur.…
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Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lebron v. State, 100 So. 3d 132 (Fla. 5th DCA 2012)