CLOVIS MOSS
v.
STATE OF FLORIDA
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A postconviction court cannot summarily deny an ineffective assistance of counsel claim based on an evidentiary ruling without attaching sufficient records that conclusively refute the claim.
[1] A postconviction court's summary denial of an ineffective assistance of counsel claim must be supported by a record that conclusively refutes the claim; if the record doe…
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Join FLexlaw to unlock all legal intelligenceClovis Moss appealed a postconviction court's summary denial of his motion for relief under Florida Rule of Criminal Procedure 3.850. Moss argued that…
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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
CLOVIS MOSS,
Appellant,
v. Case No. 5D18-1506
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed March 29, 2019
3.850 Appeal from the Circuit Court for Orange County, Dan Traver, Judge.
James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
Appellant, Clovis Moss, appeals the final order entered by the postconviction court denying his motion for postconviction relief. See Fla. R. Crim. P. 3.850. In the motion, Appellant argued that counsel was ineffective for failing to call a witness at trial that would have undermined the victim’s credibility. In summarily denying this ground, the postconviction court noted that the trial court had excluded the testimony referenced by
2 Appellant and, therefore, counsel had no basis to call the witness. However, the record attached to the summary denial does not conclusively refute Appellant’s claim as it does not reveal the source, nature, or extent of the trial court’s evidentiary ruling. Therefore, we reverse the summary denial of this ground for relief and remand for the postconviction court to either attach sufficient records to support the summary denial or to hold an evidentiary hearing. See Hird v. State, 204 So. 3d 483, 485 (Fla. 5th DCA 2016) (citing Burgos v. State, 181 So. 3d 572 (Fla. 5th DCA 2015)). REVERSED and REMANDED. ORFINGER, HARRIS, and GROSSHANS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Jabari Markeith Hird v. State, 204 So. 3d 483 (Fla. 5th DCA 2016)
- Sylvain Roland Gatineau v. State, 181 So. 3d 572 (Fla. 5th DCA 2015)