Montina v. State

District Court of Appeal of Florida

Montina v. State

81 So. 3d 594, 2012 Fla. App. LEXIS 3356, 2012 WL 669404

CourtDistrict Court of Appeal of Florida

DecidedMarch 2, 2012

DocketNo. 5D11-671

StatusPublished

This text of 81 So. 3d 594 (Montina 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

Montina v. State, 81 So. 3d 594, 2012 Fla. App. LEXIS 3356, 2012 WL 669404 (Fla. Ct. App. 2012).

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Opinion

PER CURIAM.

Sylvio Montina appeals an order summarily denying various postconviction claims of ineffective assistance of counsel, an order denying one postconviction claim after an evidentiary hearing (Montina’s claim six), and the denial or failure to address Montina’s request for appointment of counsel prior to (or at) that evidentiary hearing. We affirm the summary denial order without further discussion, but agree with Montina that the trial court erred by failing to consider his request for the appointment of counsel to aid in the preparation and presentation of evidence on his sixth claim. See Graham v. State, 372 So.2d 1363, 1365 (Fla.1979) (“[AJlthough there is no absolute right to counsel in post-conviction relief proceedings, the [postconviction court] must determine the need for counsel and resolve any doubts in favor of the appointment of counsel for the defendant.”) (emphasis added). It is also clear, based upon the Graham factors, that counsel should have been appointed in this ease. Accordingly, we reverse the denial of Montina’s sixth claim and remand for the appointment of postconviction counsel, and for a new hearing on the claim.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

TORPY and LAWSON, JJ., concur. GRIFFIN, J., dissents, without opinion.

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PER CURIAM.

Sylvio Montina appeals an order summarily denying various postconviction claims of ineffective assistance of counsel, an order denying one postconviction claim after an evidentiary hearing (Montina’s claim six), and the denial or failure to address Montina’s request for appointment of counsel prior to (or at) that evidentiary hearing. We affirm the summary denial order without further discussion, but agree with Montina that the trial court erred by failing to consider his request for the appointment of counsel to aid in the preparation and presentation of evidence on his sixth claim. See Graham v. State, 372 So.2d 1363, 1365 (Fla.1979) (“[AJlthough there is no absolute right to counsel in post-conviction relief proceedings, the [postconviction court] must determine the need for counsel and resolve any doubts in favor of the appointment of counsel for the defendant.”) (emphasis added). It is also clear, based upon the Graham factors, that counsel should have been appointed in this ease. Accordingly, we reverse the denial of Montina’s sixth claim and remand for the appointment of postconviction counsel, and for a new hearing on the claim.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

TORPY and LAWSON, JJ., concur. GRIFFIN, J., dissents, without opinion.

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Bluebook (online)

81 So. 3d 594, 2012 Fla. App. LEXIS 3356, 2012 WL 669404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montina-v-state-fladistctapp-2012.

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