WILLIE WALTON WATERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court reversed a summary denial of an ineffective assistance of counsel motion on nine of seventeen grounds, finding them facially sufficient to warrant an evidentiary hearing, while affirming the summary denial of the remaining eight grounds.
A trial court's summary denial of an ineffective assistance of counsel motion must be reversed and remanded for an evidentiary hearing when the motion raises facially sufficient claims that are not conclusively refuted by the record.
[1] A trial court must not summarily deny an ineffective assistance of counsel motion on grounds that are facially sufficient and not conclusively refuted by the record; such…
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Join FLexlaw to unlock all legal intelligenceWillie Waters filed a motion under Florida Rule of Criminal Procedure 3.850 alleging seventeen grounds of ineffective assistance of counsel. The trial…
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PER CURIAM.
This appeal was taken from an order summarily denying Willie Waters’s motion pursuant to rule 3.850, Florida Rules of Criminal Procedure. In some detail, the motion alleges ineffective assistance of counsel on seventeen grounds.
The trial court summarily denied all seventeen claims without addressing them individually or attaching any portion of the record conclusively refuting them.
We find that issues I-V (ineffective assistance for failure to investigate and call specified witnesses), issue VI (failure to object to defendant’s appearance in court in prison garb), issues VII, VIII and XVII (failure to move to disqualify the trial court judge), issue XI (failure to object to the striking of the only black potential juror in the jury pool) and issue XIV (failure to strike evidence of defendant’s underlying crimes from exhibits published to the jury) were facially sufficient. Because the record does not show “conclusively that the appellant is entitled to no relief, the order [is] reversed and the cause remanded for an evidentiary hearing,” Fla. R.App. P. 9.140(i), as to these issues.
We agree with the trial court that the remaining issues are conclusively refuted on the face of Mr. Waters’s motion and affirm the court’s order as to these issues.
BENTON, PADOVANO, and POLSTON, JJ., concur.