Perdomo v. State

District Court of Appeal of Florida

Perdomo v. State

2 So. 3d 1122, 2009 Fla. App. LEXIS 1497, 2009 WL 454346

CourtDistrict Court of Appeal of Florida

DecidedFebruary 25, 2009

Docket3D09-132

StatusPublished

This text of 2 So. 3d 1122 (Perdomo 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

Perdomo v. State, 2 So. 3d 1122, 2009 Fla. App. LEXIS 1497, 2009 WL 454346 (Fla. Ct. App. 2009).

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Opinion

WELLS, J.

This is an appeal from an order denying a Florida Rule of Criminal Procedure 3.850 motion. On appeal from a summary denial of a motion for post-conviction relief, this Court must reverse unless the record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A), (D).

Appellant’s motion raises four claims of ineffective assistance of counsel. The trial court denied relief without holding an evi-dentiary hearing and attached portions of the record below showing conclusively that appellant is entitled to no relief as to his first claim, regarding the instructions given to the jury at his trial, and his fourth claim, regarding double jeopardy. However, the court below failed to attach those portions of the record that would refute appellant’s second and third claims, regarding counsel’s advice regarding a plea offer and counsel’s failure to pursue a second plea when the opportunity arose.

We, therefore, reverse and remand for either an evidentiary hearing on these two claims or for summary disposition supported by those portions of the record (which shall be attached to the summary disposition order) conclusively showing that appellant is entitled to no relief. See Hilbert v. State, 981 So.2d 1274, 1274-75 (Fla. 3d DCA 2008); Langdon v. State, 947 So.2d 460 (Fla. 3d DCA 2006).

Reversed and remanded with instructions.

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WELLS, J.

This is an appeal from an order denying a Florida Rule of Criminal Procedure 3.850 motion. On appeal from a summary denial of a motion for post-conviction relief, this Court must reverse unless the record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A), (D).

Appellant’s motion raises four claims of ineffective assistance of counsel. The trial court denied relief without holding an evi-dentiary hearing and attached portions of the record below showing conclusively that appellant is entitled to no relief as to his first claim, regarding the instructions given to the jury at his trial, and his fourth claim, regarding double jeopardy. However, the court below failed to attach those portions of the record that would refute appellant’s second and third claims, regarding counsel’s advice regarding a plea offer and counsel’s failure to pursue a second plea when the opportunity arose.

We, therefore, reverse and remand for either an evidentiary hearing on these two claims or for summary disposition supported by those portions of the record (which shall be attached to the summary disposition order) conclusively showing that appellant is entitled to no relief. See Hilbert v. State, 981 So.2d 1274, 1274-75 (Fla. 3d DCA 2008); Langdon v. State, 947 So.2d 460 (Fla. 3d DCA 2006).

Reversed and remanded with instructions.

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2 So. 3d 1122, 2009 Fla. App. LEXIS 1497, 2009 WL 454346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perdomo-v-state-fladistctapp-2009.

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