CLYDE ALFONSO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE; BENJAMIN ALFONSO, APPELLANT, V. STATE OF FLORIDA, APPELLEE
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Clyde and Benjamin Alfonso appeal a denial of post-conviction relief based on alleged trial counsel incompetence. The court reverses because the appellants were denied the opportunity to be present and testify at the hearing on their motion despite raising factual issues within their personal knowledge.
Where a Rule 3.850 post-conviction relief hearing involves factual issues within the personal knowledge of the petitioner, due process requires that the petitioner be given the opportunity to testify and cross-examine witnesses, even though such presence is not always mandatory at these hearings.
[1] Due process requires that a petitioner in a post-conviction relief hearing must have the opportunity to testify and cross-examine witnesses when factual issues within the…
[2] A petitioner's personal knowledge of the truthfulness of counsel, the content of attorney-client conversations, and the use or nonuse of evidence known to the defendant a…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“due process demands that where there are questions of fact within the personal knowledge of the petitioner to be resolved, then at least the petitioner must have the opportunity to testify and cross-examine witnesses against him.”
Establishes the core holding that due process requires petitioner presence when personal knowledge is necessary to resolve factual issues.
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Join FLexlaw to unlock all legal intelligenceThe Alfonso brothers filed a motion for post-conviction relief under Rule 3.850 alleging their trial counsel was incompetent. The trial court determin…
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McNULTY, Chief Judge.
Clyde and Benjamin Alfonso appeal from an order denying their motion for post-conviction relief filed pursuant to Rule 3.850, RCrP. We reverse.
The basis of the motion is incompetence of trial counsel. The trial court determined that the allegations were sufficient to warrant a hearing on that issue; but only the original trial judge, the prosecutor, and the two allegedly incompetent defense counsel were present at such hearing. Neither of the petitioners nor counsel acting in their behalf were given an opportunity to be present nor did they waive it.
At the conclusion of the hearing the court apparently determined from the testimony that the alleged incompetence of counsel was merely legitimate and reasonable defense tactics or strategy and denied the motion. This appeal ensued.
Although the presence of petitioner or his counsel is not always required at Rule 3.850, supra, hearings,1 due process demands that where there are questions of fact within the personal knowledge of the peti-toner to be resolved, then at least the petitioner must have the opportunity to testify and cross-examine witnesses against him.2
Here, appellants’ allegations present factual issues involving matters about which they had personal knowledge. The allegations concerned the truthfulness of counsel, the content of conversations between attorney and client and the use or nonuse of evidence made known by defendants. Under these circumstances, where petitioners possess personal knowledge necessary to contradict and cross-examine those denying such material allegations, they must be permitted to be present.
We parenthetically point out here, too, that appellants may be entitled to independent counsel at such a hearing,3 though we do not now decide that this is necessarily so in this case.
In view whereof, 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. . 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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Citator
Cited By
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Deatrick S. Bolden v. State, 875 So. 2d 780 (Fla. 2d DCA 2004)…questions of fact within the defendant’s own knowledge which must be resolved, the defendant must be afforded the opportunity to testify and cross-examine witnesses.” Harrell v. State, 458 So. 2d 901, 902 (Fla. 2d DCA 1984) (citing Alfonso v. State, 319 So. 2d 49, 50 (Fla. 2d DCA 1975)). Accordingly, on remand, if the trial court can resolve Bolden’s motion under the proper standard without considering facts that are within Bolden’s knowledge, then Bolden need not be present. Affirmed in part, reversed in p…
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Cintron v. State, 508 So. 2d 1315 (Fla. 2d DCA 1987)…stimony which is contradictory to the allegations sworn as true by Cintron’s motion. As such, it ought to have been subject to confrontation by Cintron at an evidentiary hearing. Harrell v. State, 458 So. 2d 901 (Fla. 2d DCA 1984); Alfonso v. State, 319 So. 2d 49 (Fla. 2d DCA 1975). We stress that by no means are we impugning Montesino’s credibility. It may well be that in this case the result of any evidentiary hearing is a foregone conclusion and the hearing itself a useless act. However, since Cintron ha…
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Harrell v. State, 458 So. 2d 901 (Fla. 2d DCA 1984)…or post-conviction relief. Nevertheless, where, as here, there are questions of fact within the defendant’s own knowledge which must be resolved, the defendant must be afforded an opportunity to testify and cross-examine witnesses. Alfonso v. State, 319 So. 2d 49 (Fla. 2d DCA 1975). Here, based on the statement from defendant’s former trial counsel, counsel apparently dis'cussed with the defendant the advisability of obtaining the alibi witnesses, and defendant agreed such witnesses should not be called. Tr…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Weeks, 166 So. 2d 892 (Fla. 1964)
- State v. Madison Lee Reynolds, 238 So. 2d 598 (Fla. 1970)
- Ballard v. State, 200 So. 2d 597 (Fla. 3d DCA 1967)
- EBY v. State, 306 So. 2d 602 (Fla. 2d DCA 1975)
- Reba Richter v. Waddill, 204 So. 2d 9 (Fla. 1st DCA 1967)
- Bryant v. State, 204 So. 2d 9 (Fla. 3d DCA 1967)