JEFF SCOTT,
v.
THE STATE OF FLORIDA,
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A trial court may not summarily deny a postconviction motion alleging ineffective assistance of counsel based on trial counsel's advice not to testify when the record does not conclusively disprove the allegation that no reasonable attorney would have discouraged testifying.
[1] A postconviction motion alleging ineffective assistance of counsel based on trial counsel's advice not to testify cannot be summarily denied when the record does not conc…
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Join FLexlaw to unlock all legal intelligenceJeff Scott appealed a trial court's November 2, 2020 order summarily denying his postconviction motion. Scott alleged that his trial counsel was defic…
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Third District Court of Appeal State of Florida
Opinion filed August 17, 2022. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D20-1813 Lower Tribunal No. F14-8780 ________________
Jeff Scott, Appellant,
vs.
The State of Florida, Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Zachary James, Judge.
Michael Ufferman Law Firm, P.A., and Michael Ufferman (Tallahassee), for appellant.
Ashley Moody, Attorney General, and Ivy R. Ginsberg, Assistant Attorney General, for appellee.
Before SCALES, LINDSEY and MILLER, JJ.
ON MOTION FOR REHEARING
2
PER CURIAM.
We grant Appellant Jeff Scott’s motion for rehearing, withdraw this Court’s March 23, 2022 unelaborated affirmance opinion, and replace it with the following: Appellant challenges the trial court’s November 2, 2020 order summarily denying Appellant’s postconviction motion. Appellant’s motion alleged that his trial counsel was deficient for advising Appellant not to testify at his trial. Attached to the trial court’s order is ample evidence that Appellant’s decision not to testify was voluntary. The order’s attachments, however, do not conclusively disprove Appellant’s allegation that no reasonable attorney would have discouraged Appellant from testifying. We therefore reverse the challenged order and remand the matter to the postconviction trial court to conduct an evidentiary hearing to determine whether Appellant’s trial counsel was deficient in advising Appellant not to testify. See Hodges v. State, 260 So. 3d 458, 459-60 (Fla. 5th DCA 2018); Simon v. State, 47 So. 3d. 883, 885-86 (Fla. 3d DCA 2010). Reversed and remanded with instructions.