Merritt v. State

District Court of Appeal of Florida

Merritt v. State

642 So. 2d 845, 1994 Fla. App. LEXIS 9320, 1994 WL 524308

CourtDistrict Court of Appeal of Florida

DecidedSeptember 28, 1994

DocketNo. 94-2063

StatusPublished

Cited by3 cases

This text of 642 So. 2d 845 (Merritt 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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Merritt v. State, 642 So. 2d 845, 1994 Fla. App. LEXIS 9320, 1994 WL 524308 (Fla. Ct. App. 1994).

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Opinion

PARIENTE, Judge.

This appeal follows from the trial court’s summary denial of defendant’s motion for post-conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. We affirm on all grounds, except for defendant’s assertion that he did not voluntarily waive his right to testify on his own behalf.

On remand, an evidentiary hearing is required only on the question of whether trial counsel was ineffective by depriving defendant of his right to testify on his own behalf at trial. The focus of the inquiry, based on defendant’s sworn allegations, should be whether defendant waived his right to testify, or whether that right was waived by his trial counsel without his agreement. See Kersey v. State, 636 So.2d 789 (Fla. 2d DCA 1994); Gill v. State, 632 So.2d 660 (Fla. 2d DCA 1994); Williams v. State, 601 So.2d 596 (Fla. 1st DCA 1992).

As an alternative to an evidentiary hearing, the trial court may attach portions of the record if they conclusively establish that defendant is not entitled to the relief sought. However, as it stands now, the conversations to which defendant refers in his 3.850 motion were presumably private attorney-client conversations not contained in the record. Furthermore, the state does not contend that there are portions of the record which will demonstrate that defendant personally waived his right to testify. Therefore, an evidentiary hearing may be the only viable alternative.

Defendant contends that he had stated his desire to testify to counsel so that he could dispel the erroneous testimony of the detective. He further contends that although counsel attempted to convince him that his testimony would do more harm than good, he still insisted on taking the stand. Despite this insistence, defendant asserts counsel nevertheless rested the case without permitting defendant to testify. Defendant’s motion may be denied if the evidence demonstrates that his claims are untrue, e.g. that he became dissatisfied with counsel’s choice only through hindsight or if, contrary to defendant’s claims, counsel did confer with defendant and reasonably concluded that defendant agreed with the decision to rest without taking the stand. Gill.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

GUNTHER and POLEN, JJ., concur.

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PARIENTE, Judge.

This appeal follows from the trial court’s summary denial of defendant’s motion for post-conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. We affirm on all grounds, except for defendant’s assertion that he did not voluntarily waive his right to testify on his own behalf.

On remand, an evidentiary hearing is required only on the question of whether trial counsel was ineffective by depriving defendant of his right to testify on his own behalf at trial. The focus of the inquiry, based on defendant’s sworn allegations, should be whether defendant waived his right to testify, or whether that right was waived by his trial counsel without his agreement. See Kersey v. State, 636 So.2d 789 (Fla. 2d DCA 1994); Gill v. State, 632 So.2d 660 (Fla. 2d DCA 1994); Williams v. State, 601 So.2d 596 (Fla. 1st DCA 1992).

As an alternative to an evidentiary hearing, the trial court may attach portions of the record if they conclusively establish that defendant is not entitled to the relief sought. However, as it stands now, the conversations to which defendant refers in his 3.850 motion were presumably private attorney-client conversations not contained in the record. Furthermore, the state does not contend that there are portions of the record which will demonstrate that defendant personally waived his right to testify. Therefore, an evidentiary hearing may be the only viable alternative.

Defendant contends that he had stated his desire to testify to counsel so that he could dispel the erroneous testimony of the detective. He further contends that although counsel attempted to convince him that his testimony would do more harm than good, he still insisted on taking the stand. Despite this insistence, defendant asserts counsel nevertheless rested the case without permitting defendant to testify. Defendant’s motion may be denied if the evidence demonstrates that his claims are untrue, e.g. that he became dissatisfied with counsel’s choice only through hindsight or if, contrary to defendant’s claims, counsel did confer with defendant and reasonably concluded that defendant agreed with the decision to rest without taking the stand. Gill.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

GUNTHER and POLEN, JJ., concur.

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642 So. 2d 845, 1994 Fla. App. LEXIS 9320, 1994 WL 524308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merritt-v-state-fladistctapp-1994.

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