Waldburg v. State

644 So. 2d 608, 1994 WL 603162

Opinion

644 So.2d 608 (1994)

Alvin WALDBURG, Appellant,
v.
STATE of Florida, Appellee.

No. 93-3892.

District Court of Appeal of Florida, First District.

November 7, 1994.

Alvin Waldburg, pro se.

Robert A. Butterworth, Atty. Gen., and Richard Parker, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

The appellant, Alvin Waldburg, challenges the summary denial of his motion for post-conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. In the motion, appellant alleges that he was denied his right to a speedy trial, and that trial counsel was ineffective for failing to assert appellant's speedy trial right in a timely fashion. The contention that appellant was denied a speedy trial presents an issue that could or should have been raised on direct appeal and is thus improper to raise under rule 3.850. Gardner v. State, 550 So.2d 176 (Fla. 1st DCA 1989); Shannon v. State, 406 So.2d 87 (Fla. 1st DCA 1981); Suto v. State, 422 So.2d 924 (Fla. 2d DCA 1982).

However, the claim that trial counsel was ineffective in failing to timely assert appellant's speedy trial right presents a cognizable basis for post-conviction relief. Pippin v. State, 626 So.2d 1091 (Fla. 1st DCA 1993); Gunn v. State, 378 So.2d 105 (Fla. 5th DCA 1980). Our review of the record indicates that this was a facially valid claim that was not susceptible to summary denial. Consequently, we must reverse and remand for an evidentiary hearing on this issue, or for attachment of portions of the record refuting appellant's allegation.

AFFIRMED in part, REVERSED in part and REMANDED for further proceedings consistent with this opinion.

MINER, LAWRENCE and BENTON, JJ., concur.