ARLEN KIM LESLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a trial judge must attach the record or hold an evidentiary hearing if a motion to vacate alleges facts entitling a prisoner to relief. The court affirmed denial of one claim but reversed and remanded for a hearing on another.
Appellant filed a motion to vacate his sentence, alleging his plea was involuntary due to sedation and that his counsel was ineffective for failing to…
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[*86] PER CURIAM.
Appellant’s motion to vacate, set aside, or correct his sentence, filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure, was summarily denied by the trial court. We affirm in part and reverse in part.
If a motion to vacate alleges facts which, if true, would entitle a prisoner to relief, then the judge reviewing the motion must attach to his order denying the motion that portion of the record which conclusively shows that the prisoner is entitled to no relief, or he must hold an evidentiary hearing. Payne v. State, 362 So. 2d 688 (Fla. 2d DCA 1978).
Appellant made two allegations: (1) that his plea was involuntary because he was heavily sedated on the morning of his plea hearing, and (2) that his court-appointed counsel was ineffective in that he failed to inform appellant that he had a possible defense of lack of mens rea. These allegations, if true, would entitle appellant to the relief sought. Capshaw v. State, 362 So. 2d 429 (Fla. 2d DCA 1978).
The portions of the record provided by the trial judge refute the first allegation. The trial court’s summary denial of the motion is therefore affirmed as to that allegation. However, there is nothing in the record before this court which refutes appellant’s allegation of ineffective assistance of counsel. The cause is therefore remanded for an evidentiary hearing on that allegation.
HOBSON, Acting C. J., and OTT and RYDER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982)…mer plea of guilty. An attorney’s failure to advise a court of a defendant’s sedated condition at trial may invalidate a guilty plea as one having been made involuntarily. Capshaw v. State, 362 So. 2d 429 (Fla.2d DCA 1980); see also Lesley v. State, 370 So. 2d 85 (Fla.2d DCA 1979). Third, our review of appellant’s motion reveals that his allegations refer to specific omissions or overt acts by trial counsel, all of which we do not list in this opinion. The acts or omissions alluded to, and if true, suggest…
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Stephens v. State, 399 So. 2d 1106 (Fla. 5th DCA 1981)…portion of the case file and record which refutes appellant’s allegations or (b) conduct an eviden-tiary hearing on appellant’s allegation that the guilty plea was not voluntary. Gunter v. State, 380 So. 2d 1198 (Fla. 5th DCA 1980); Lesley v. State, 370 So. 2d 85 (Fla. 2d DCA 1979); Payne v. State, 362 So. 2d 688 (Fla. 2d DCA 1978). REVERSED AND REMANDED. ORFINGER and COWART, JJ., concur.…
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Brown v. State, 390 So. 2d 447 (Fla. 5th DCA 1980)…at portion of the case file and record which refutes appellant’s allegations or (b) conduct an evidentiary hearing on appellant’s allegation of ineffective assistance of counsel. Gunter v. State, 380 So. 2d 1198 (Fla. 5th DCA 1980); Lesley v. State, 370 So. 2d 85 (Fla.2d DCA 1979); Payne v. State, 362 So. 2d 688 (Fla.2d DCA 1978). If the trial judge is unable to conduct such hearing, the chief circuit judge shall reassign the case. REVERSED and REMANDED for further proceedings. ORFINGER and COBB, JJ., co…
Authorities Cited
- Payne v. State, 362 So. 2d 688 (Fla. 2d DCA 1978)
- Trimboli v. State, 362 So. 2d 429 (Fla. 2d DCA 1978)