JOSHUWA HODGES
v.
STATE OF FLORIDA
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A trial court cannot summarily deny a postconviction ineffective assistance claim alleging deficient counsel advice against testifying without a record that conclusively establishes no reasonable attorney would have given such advice.
[1] A postconviction court cannot summarily deny an ineffective assistance of counsel claim alleging deficient advice against testifying unless the record conclusively establ…
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Join FLexlaw to unlock all legal intelligence“[T]o 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.”
Court explaining the standard for summary denial of postconviction motions
Hodges was convicted of robbery with a firearm and sentenced to fifteen years. He filed a postconviction motion alleging his trial counsel ineffective…
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JOSHUWA HODGES,
Appellant,
v. Case No. 5D18-1671
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed November 30, 2018
3.850 Appeal from the Circuit Court for Orange County, Dan Traver, Judge.
Joshuwa Hodges, Mayo, pro se.
No Appearance for Appellee.
LAMBERT, J.
Joshuwa Hodges appeals an order summarily denying his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We affirm the denial of grounds one, two, and three of the motion without further discussion. For the following reasons, we reverse that part of the order that denied ground four and remand for further proceedings.
Following a jury trial, Hodges was convicted of robbery with a firearm and was sentenced by the trial court to serve fifteen years in prison. On direct appeal, we affirmed
In ground four of his sworn postconviction motion, Hodges alleged that his trial counsel provided ineffective assistance when he “misadvised” Hodges not to testify at trial. Hodges asserted that his testimony would have refuted the State’s theory of his guilt “in this circumstantial case,” and he set forth in his motion the specific facts he would have provided at trial that he claims would have “explained the lack of physical evidence” that “tie[d] him to the crime.” In summarily denying this ground, the postconviction court attached to its order a copy of the transcript of the colloquy between the trial court and Hodges about his decision not to testify. The postconviction court concluded that Hodges’s decision to not testify was made freely and voluntarily and that prior to making this decision, Hodges had been informed that the jury could be made aware of his prior felony conviction, but not the specifics of the conviction, if he testified.
Initially, the postconviction court correctly determined that the record conclusively established that Hodges freely and voluntarily waived his right to testify. However, the dispositive question left unanswered here is whether counsel’s advice to Hodges not to testify, even though voluntarily followed, was nevertheless deficient because no reasonable attorney would have discouraged him from testifying. See Lott v. State, 931 So. 2d 807, 819 (Fla. 2006); Sutton v. State, 200 So. 3d 235, 236 (Fla. 5th DCA 2016) (citing Simon v. State, 47 So. 3d 883, 885 (Fla. 3d DCA 2010)).
As stated, Hodges alleged that his counsel’s advice that he not take the stand was deficient because his testimony was necessary to refute the State’s circumstantial evidence that Hodges committed the robbery. Hodges further alleged that he was
AFFIRMED in part; REVERSED in part; REMANDED.
EDWARDS and EISNAUGLE, JJ., concur.
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Authorities Cited (13 total)
- Alcorn v. State, 121 So. 3d 419 (Fla. 2013)
- Foster v. State, 810 So. 2d 910 (Fla. 2002)
- Lott v. State, 931 So. 2d 807 (Fla. 2006)
- Clandyve Simon v. State, 47 So. 3d 883 (Fla. 3d DCA 2010)
- Lamb v. State, 202 So. 3d 118 (Fla. 5th DCA 2016)
- Mena v. Sweat Transp., Inc., 47 So. 3d 883 (Fla. 3d DCA 2010)
- C.L.T. v. State, 200 So. 3d 235 (Fla. 5th DCA 2016)
- Rivas v. Miami-Dade Cnty., 239 So. 3d 791 (Fla. 3d DCA 2018)
- Sutton v. State, 200 So. 3d 235 (Fla. 5th DCA 2016)
- Draper v. State, 225 So. 3d 833 (Fla. 5th DCA 2017)