ROBERT HUGHES HARRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE.
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The court affirmed the summary denial of most grounds for postconviction relief but reversed and remanded Grounds One and Three regarding ineffective assistance of counsel for failing to request an alibi instruction and providing allegedly misleading advice about the right to testify.
A defendant is entitled to an evidentiary hearing on a postconviction relief motion when the record does not conclusively refute claims of ineffective assistance of counsel regarding an alibi instruction or advice on the right to testify.
[1] A defendant is entitled to an evidentiary hearing on a postconviction relief motion unless the motion, files, and records conclusively show the prisoner is entitled to no…
[2] An evidentiary hearing is usually necessary to determine whether counsel's advice not to testify constitutes deficient performance under the ineffective assistance of cou…
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Join FLexlaw to unlock all legal intelligenceRobert Harris was convicted and filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, raising eight grounds for rel…
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Robert Harris appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to Grounds Two, Four, Five, Six, Seven, and Eight. However, because the record does not conclusively refute Harris's sufficiently pled claim that counsel was ineffective for failing to ask for an alibi instruction, we reverse the summary denial of Ground One and remand for attachment of portions of the record conclusively refuting this claim or for an evidentiary hearing. See Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000) ("[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient." (citing Maharaj v. State, 684 So.2d 726 (Fla. 1996) )). We also reverse the summary denial of Ground Three, regarding counsel's alleged misleading advice on Harris's right to testify, and remand for an evidentiary hearing. Simon v. State, 47 So.3d 883, 886 (Fla. 3d DCA 2010) (concluding evidentiary hearing is usually necessary to determine whether counsel's advice not to testify is deficient).
AFFIRMED in part, REVERSED in part, and REMANDED.
BERGER, LAMBERT and EISNAUGLE, JJ., concur
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Citator
Cited By
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Joshuwa Hodges v. State, 260 So. 3d 458 (Fla. 5th DCA 2018)
Authorities Cited
- Freeman v. State, 761 So. 2d 1055 (Fla. 2000)
- Krishna Maharaj v. State, 684 So. 2d 726 (Fla. 1996)
- Clandyve Simon v. State, 47 So. 3d 883 (Fla. 3d DCA 2010)