Munoz v. State

129 So. 3d 472, 2014 WL 30580, 2014 Fla. App. LEXIS 106

Opinion

PER CURIAM.

The Appellant has filed a Florida Rule of Criminal Procedure 3.850 motion raising three claims. We affirm claims one and three, but reverse and remand claim two for further proceedings. The Appellant alleges in claim two that counsel acted ineffectively for failing to file a motion for the trial judge who accepted the Appellant’s open plea to recuse himself after announcing on the record that the judge maintained an “active relationship” with the victim’s family, and thereafter sentenced the Appellant to a sentence greater than that which the State sought. We conclude that the Appellant’s allegations are facially sufficient and are not refuted by the record. See Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Fla. R. Jud. Admin. 2.330; Thompson v. State, 990 So.2d 482 (Fla.2008). Accordingly, the trial court shall either attach the portion of the record that conclusively refutes the Appellant’s claim, or shall hold an evidentiary hearing on the matter.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

CLARK, WETHERELL, and RAY, JJ., concur.