Destefano v. State

District Court of Appeal of Florida

Destefano v. State

256 So. 3d 222

CourtDistrict Court of Appeal of Florida

DecidedAugust 17, 2018

DocketCase No. 5D18-1521

StatusPublished

This text of 256 So. 3d 222 (Destefano v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Destefano v. State, 256 So. 3d 222 (Fla. Ct. App. 2018).

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Opinion

PER CURIAM.

Anthony S. DeStefano 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 through Five. However, because the record does not conclusively refute DeStefano's claim that counsel was ineffective for failing to object to the prosecutor's comments on the law applicable to his sentencing, we reverse the summary denial of Ground One and remand for attachment of portions of the record conclusively refuting that 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) ) ).

AFFIRMED in part, REVERSED in part, and REMANDED.

ORFINGER, BERGER, and EISNAUGLE, JJ., concur.

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PER CURIAM.

Anthony S. DeStefano 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 through Five. However, because the record does not conclusively refute DeStefano's claim that counsel was ineffective for failing to object to the prosecutor's comments on the law applicable to his sentencing, we reverse the summary denial of Ground One and remand for attachment of portions of the record conclusively refuting that 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) ) ).

AFFIRMED in part, REVERSED in part, and REMANDED.

ORFINGER, BERGER, and EISNAUGLE, JJ., concur.

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Bluebook (online)

256 So. 3d 222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/destefano-v-state-fladistctapp-2018.

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