Fitzgerald v. State

District Court of Appeal of Florida

Fitzgerald v. State

892 So. 2d 541, 2005 Fla. App. LEXIS 515, 2005 WL 124181

CourtDistrict Court of Appeal of Florida

DecidedJanuary 24, 2005

DocketNo. 1D04-2647

StatusPublished

Cited by1 cases

This text of 892 So. 2d 541 (Fitzgerald 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.

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Fitzgerald v. State, 892 So. 2d 541, 2005 Fla. App. LEXIS 515, 2005 WL 124181 (Fla. Ct. App. 2005).

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Opinion

PER CURIAM.

This is an appeal from the trial court’s summary denial of Appellant’s postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court failed to attach portions of the record to conclusively refute Appellant’s claim of misadvice, we reverse. We affirm all other issues raised on appeal without further discussion.

In his motion, Appellant made a facially sufficient claim that his counsel misadvised him about the consequences of testifying. Jennings v. State, 685 So.2d 879 (Fla. 2d DCA 1996). The trial court improperly relied on extra-record information to deny Appellant’s motion without an evidentiary hearing. Mims v. State, 672 So.2d 662 (Fla. 1st DCA 1996). We, therefore, reverse the trial court’s summary denial of this claim and remand either for further attachment of record portions to refute Appellant’s claim or for an evidentiary hearing.

AFFIRMED, in part, REVERSED, in part, and REMANDED.

BENTON, LEWIS and THOMAS, JJ., concur.

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PER CURIAM.

This is an appeal from the trial court’s summary denial of Appellant’s postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court failed to attach portions of the record to conclusively refute Appellant’s claim of misadvice, we reverse. We affirm all other issues raised on appeal without further discussion.

In his motion, Appellant made a facially sufficient claim that his counsel misadvised him about the consequences of testifying. Jennings v. State, 685 So.2d 879 (Fla. 2d DCA 1996). The trial court improperly relied on extra-record information to deny Appellant’s motion without an evidentiary hearing. Mims v. State, 672 So.2d 662 (Fla. 1st DCA 1996). We, therefore, reverse the trial court’s summary denial of this claim and remand either for further attachment of record portions to refute Appellant’s claim or for an evidentiary hearing.

AFFIRMED, in part, REVERSED, in part, and REMANDED.

BENTON, LEWIS and THOMAS, JJ., concur.

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892 So. 2d 541, 2005 Fla. App. LEXIS 515, 2005 WL 124181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzgerald-v-state-fladistctapp-2005.

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