Pena v. State

District Court of Appeal of Florida

Pena v. State

773 So. 2d 1184, 2000 Fla. App. LEXIS 15421, 2000 WL 1744849

CourtDistrict Court of Appeal of Florida

DecidedNovember 29, 2000

DocketNo. 2D00-2545

StatusPublished

Cited by1 cases

This text of 773 So. 2d 1184 (Pena 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

Pena v. State, 773 So. 2d 1184, 2000 Fla. App. LEXIS 15421, 2000 WL 1744849 (Fla. Ct. App. 2000).

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Opinion

PER CURIAM.

Hector Pena appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because Pena presented three issues that are not conclusively refuted by the record, we reverse as to these issues. We affirm the trial court’s order in all other respects.

Pena alleges that his trial counsel did not investigate his case and was unprepared for the trial. Pena maintains that the lack of preparation resulted in the defense witnesses identified by Pena not being called to testify and in exculpatory evidence not being admitted into evidence.

According to Pena, trial counsel admitted that he was unprepared and unsuccessfully sought a continuance. To assist in the resolution of these issues, this court has taken judicial notice of the court records of Pena’s direct appeal. See Bunger v. State, 687 So.2d 868 (Fla. 2d DCA 1997). The appellate record shows that Pena’s trial counsel was adamant in his representations to the trial court that he had not [1185]*1185obtained witnesses and had not investigated the case.

The trial court addressed the issues by-stating that counsel unsuccessfully sought a continuance and that the denial of the continuance should have been addressed on appeal. However, this is an issue for postconviction relief rather than an issue for direct appeal because counsel, having been retained eight months prior to the trial, apparently failed to use this time to investigate Pena’s case and prepare for the trial. Consequently, the denial of the continuance was proper. However, the adequacy of trial counsel’s performance and its effect on the outcome of the trial must be reconsidered by the trial court. If the trial court determines without an eviden-tiary hearing that counsel’s performance was adequate or that counsel’s inadequacy did not prejudice Pena, it must attach the documents from the court file that support its conclusions to the order denying relief. Otherwise, the trial court must conduct an evidentiary hearing on Pena’s issues.

Affirmed in part, reversed in part, and remanded.

CAMPBELL, A.C.J., and BLUE and WHATLEY, JJ., Concur.

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PER CURIAM.

Hector Pena appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because Pena presented three issues that are not conclusively refuted by the record, we reverse as to these issues. We affirm the trial court’s order in all other respects.

Pena alleges that his trial counsel did not investigate his case and was unprepared for the trial. Pena maintains that the lack of preparation resulted in the defense witnesses identified by Pena not being called to testify and in exculpatory evidence not being admitted into evidence.

According to Pena, trial counsel admitted that he was unprepared and unsuccessfully sought a continuance. To assist in the resolution of these issues, this court has taken judicial notice of the court records of Pena’s direct appeal. See Bunger v. State, 687 So.2d 868 (Fla. 2d DCA 1997). The appellate record shows that Pena’s trial counsel was adamant in his representations to the trial court that he had not [1185]*1185obtained witnesses and had not investigated the case.

The trial court addressed the issues by-stating that counsel unsuccessfully sought a continuance and that the denial of the continuance should have been addressed on appeal. However, this is an issue for postconviction relief rather than an issue for direct appeal because counsel, having been retained eight months prior to the trial, apparently failed to use this time to investigate Pena’s case and prepare for the trial. Consequently, the denial of the continuance was proper. However, the adequacy of trial counsel’s performance and its effect on the outcome of the trial must be reconsidered by the trial court. If the trial court determines without an eviden-tiary hearing that counsel’s performance was adequate or that counsel’s inadequacy did not prejudice Pena, it must attach the documents from the court file that support its conclusions to the order denying relief. Otherwise, the trial court must conduct an evidentiary hearing on Pena’s issues.

Affirmed in part, reversed in part, and remanded.

CAMPBELL, A.C.J., and BLUE and WHATLEY, JJ., Concur.

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Bluebook (online)

773 So. 2d 1184, 2000 Fla. App. LEXIS 15421, 2000 WL 1744849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pena-v-state-fladistctapp-2000.

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