IRVING FLORES
v.
STATE OF FLORIDA
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A postconviction court cannot summarily deny an ineffective assistance of counsel claim alleging that trial counsel failed to call a witness unless the record conclusively refutes the claim.
[1] A motion for postconviction relief sufficiently alleges ineffective assistance of counsel for failing to call a witness when the record does not conclusively refute the c…
[2] A summary denial of a claim in a motion for postconviction relief must be reversed and remanded for an evidentiary hearing if the record does not conclusively refute the…
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Join FLexlaw to unlock all legal intelligenceIrving Flores appealed the denial of his 3.850 motion for postconviction relief, raising nine grounds. The postconviction court held an evidentiary he…
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PER CURIAM.
Irving Flores appeals the denial of his motion for postconviction relief.1 See Fla. R. Crim. P. 3.850. In the first ground of his motion, Mr. Flores sufficiently 1Mr. Flores raised nine grounds in his motion for postconviction relief. The postconviction court denied the second and fourth grounds after an evidentiary hearing, and summarily denied the remaining grounds. On appeal, Mr. Flores only challenges the postconviction court's summary denial of the first and eighth grounds.
alleged that trial counsel was ineffective for failing to call a witness at trial. See Barthel
v. State, 882 So. 2d 1054, 1055 (Fla. 2d DCA 2004). Because the record relied upon
by the postconviction court did not conclusively refute Mr. Flores' claim, see Jones v. State, 71 So. 3d 193, 195 (Fla. 4th DCA 2011); Yarbrough v. State, 871 So. 2d 1026, 1031 (Fla. 1st DCA 2004), we reverse the summary denial of the first ground and remand for an evidentiary hearing, see Nolan v. State, 794 So. 2d 639, 641 (Fla. 2d DCA 2001). We affirm the order in all other respects.
Affirmed in part; reversed in part; remanded with instructions.
CASANUEVA, SLEET, and LUCAS, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Lolita Barthel v. State, 882 So. 2d 1054 (Fla. 2d DCA 2004)
- Johnson v. State, 871 So. 2d 1026 (Fla. 1st DCA 2004)
- Nolan v. State, 794 So. 2d 639 (Fla. 2d DCA 2001)
- Jones v. State, 71 So. 3d 193 (Fla. 4th DCA 2011)