RICHARD LEE EBY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Eby appealed the denial of his Rule 3.850 motion for post-conviction relief based on claimed trial counsel incompetence. The trial court held a hearing but refused to bring Eby from prison to testify, instead relying on testimony from the original judge, prosecutor, and defense counsel. The appellate court reversed, holding that due process required Eby's presence when factual disputes existed within his personal knowledge.
The trial court abused its discretion. Although a petitioner's presence is not always required at a Rule 3.850 hearing, the trial court must exercise its discretion in light of due process requirements. When there are factual disputes involving matters within the prisoner's personal knowledge that need to be resolved, the prisoner must be given an opportunity to testify.
[1] A trial court abuses its discretion by denying a defendant's presence at a post-conviction relief hearing when factual disputes within the defendant's personal knowledge…
[2] A defendant has a due process right to testify at a post-conviction relief hearing concerning factual matters within their personal knowledge.
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Join FLexlaw to unlock all legal intelligence“If, upon hearing, there are questions of fact within the personal knowledge of the prisoner to be resolved, then the prisoner should be given an opportunity to testify.”
Establishes the legal standard requiring a prisoner's presence at post-conviction hearings when factual disputes involve his personal knowledge
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Join FLexlaw to unlock all legal intelligenceEby was convicted of murder. At trial, his counsel made an opening statement promising evidence of Eby's incompetency and a heat of passion defense, b…
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McNULTY, Chief Judge.
Eby appeals from an order denying his motion for post-conviction relief filed pursuant to Rule 3.850, RCrP. The basis of his motion is incompetence of trial counsel and the court below properly determined that the allegations were sufficient to require a hearing on the issues framed. The court refused, however, to issue a writ of habeas corpus ad testificandum directed to the state prison officials which would have secured appellant’s presence at the hearing. Only the original trial judge, the prosecuting attorney and appointed defense counsel appeared and testified. The court concluded from their testimony that the al leged incompetence of appointed counsel was merely legitimate and reasonable trial tactics or strategy and denied the motion as aforesaid. We reverse.
While it may be conceded that even when a hearing is required pursuant to Rule 3.850, supra, the presence of the petitioner is not always required,1 nevertheless it is a matter within the discretion of the trial court which must be exercised in the light of other applicable principles of law including the requirements of due process.2 As pointed out by our Supreme Court in State v. Reynolds:3
“. . . If, upon hearing, there are questions of fact within the personal knowledge of the prisoner to be resolved, then the prisoner should be given an opportunity to testify.”
An analysis of appellant’s contentions herein shows that there is a factual dispute involving matters about which he had personal knowledge. At the trial, for example, appellant’s counsel stated in his opening statement to the -jury that it would later hear testimony tending to establish appellant’s incompetency and, additionally, testimony concerning a heat of passion defense explaining the appellant’s murder of his wife and her paramour. The attorney, however, never presented any evidence in support of these defenses. In fact, appellant himself did not testify and no defense was otherwise presented at all. Understandably, of course, counsel testified in the instant proceeding that in his judgment the foregoing omissions constituted the best trial tactics. He also testified that appellant agreed with the tactics. All of this may indeed be true, as the court found; but it contrasts sharply with the contentions of appellant as outlined in his motion for post-conviction relief. He was not permitted to present his own testimony in contradiction thereof nor was he given an opportunity to assist his attorney in cross-examining any of the witnesses. We point out parenthetically, moreover, that for some unexplained reason only part of the original trial transcript was available to the reviewing judge in the instant proceeding. Withal, we think the trial court abused its discretion and should have secured the presence of appellant at the proceeding under review.
Accordingly, the order appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.
BOARDMAN and GRIMES, JJ., concur. '
.Nee Bryant v. State (Fla.App.3d, 1967), 204 So. 2d 9; Ballard v. State (Fla.App. 3d, 1967), 200 So. 2d 597.
. See State v. Reynolds (Fla.1970), 238 So. 2d 598.
. Id. at p. 600.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. EBY, 342 So. 2d 1087 (Fla. 2d DCA 1977)…er and to reinstate and leave standing the convictions, adjudications of guilt and sentences of confinement entered against appellee herein. BOARDMAN, C. J., and SCHEB, J., concur. . Eby v. State, 276 So. 2d 566 (Fla.2d DCA 1973). . Eby v. State, 306 So. 2d 602 (Fla.2d DCA 1975). . n. 1, supra. . See Herring v. Estelle, 491 F. 2d 125 (5th Cir. 1974); Mims v. Wainwright, 403 F.Supp. 552 (M.D.Fla.1975); see also Fuller v. Wainwright, 238 So. 2d 65 (Fla.1970).…
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Alfonso v. State, 319 So. 2d 49 (Fla. 2d DCA 1975)…., concur. . See State v. Weeks (Fla.1964), 166 So. 2d 892; Bryant v. State (Fla.App.3d, 1967), 204 So. 2d 9; Ballard v. State (Fla.App.3d, 1967), 200 So. 2d 597. . See State v. Reynolds (Fla.1970), 238 So. 2d 598; Eby v. State (Fla.App.2d, 1975), 306 So. 2d 602. . See State v. Weeks, supra, n. 1.…
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Preston v. City OF Fort Pierce, 637 So. 2d 326 (Fla. 4th DCA 1994)…est the legality of a conviction; one ancient use is the writ of habeas corpus ad testificandum, by which a witness confined in prison may be summoned to the courtroom to give testimony in a proceeding other than his criminal trial. In Eby v. State, 306 So. 2d 602 (Fla. 2d DCA 1975), a prisoner sought to challenge the effectiveness of his trial counsel in post conviction proceedings.4 The trial court refused to issue a writ of habeas corpus ad testificandum to secure the presence of the prisoner to testify at…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Madison Lee Reynolds, 238 So. 2d 598 (Fla. 1970)
- Ballard v. State, 200 So. 2d 597 (Fla. 3d DCA 1967)
- Reba Richter v. Waddill, 204 So. 2d 9 (Fla. 1st DCA 1967)
- Bryant v. State, 204 So. 2d 9 (Fla. 3d DCA 1967)