Grady v. StateGrady v. State
No appearance for Appellee.
PER CURIAM.
Appellant challenges an order denying his motion for postconviction relief filed pursuant to
Appellant pled nolo contendere to robbery and wаs sentenced as an habitual felony offender to fifteen years imprisonment. This Court affirmed his conviction and sentence in May 1994. Appellant‘s first 3.850 motion, filed that same month and apparently alleging some claims of ineffective assistance of counsel, was denied by the trial court in June 1994.
Appellant then timely filed his second properly sworn 3.850 motion alleging that defense counsel rendered ineffective assistance by (1) failing to inform appellant that voluntary intoxication was a viable defense despitе having been informed that appellant had a drug dependency problem and was “partying heavy” at the time of the offense, (2) failing to depose certain specifically named prospeсtive witnesses whose testimony could have cast doubt on appellant‘s guilt by either corroborating his сlaim that he had been partying heavy at the time of the offense or his claim that he had a drug dependency problem thereby providing support for his voluntary intoxication defense, and (3) failing to advise appellant prior to the entry of his plea of the maximum possible habitual offender sentence he could receive for his offense. Appellant specifically alleged in his motion that, but for dеfense counsel‘s identified failings, he would not have pled nolo contendere and would have insteаd gone to trial.
The trial court then issued an order referencing a 1995 case number and denied appellant‘s motion on grounds that his case was currently on appeal. Appellant later filed an amended 3.850 motion asserting the same claims raised in his second 3.850 motion.1
The trial court subsequently denied appellant‘s amended 3.850 motion on grounds that it was improperly successive since his first 3.850 motion alleging ineffеctive assistance of counsel had been denied by the trial court. Yet the trial court did not indicate whether the denial of appellant‘s first 3.850 motion had been on the merits and did not attach copiеs of that motion or the order denying it. The only documents attached to the trial court‘s order denying aрpellant‘s amended 3.850 motion were a copy of the decision in Ragan v. State, 643 So. 2d 1175 (Fla. 3d DCA 1994), with an accompanying Shepard‘s print-out for that case, and a copy of appellant‘s written plea agreement. Thеse attachments do not conclusively show that appellant‘s amended motion was improperly
Appellant‘s remaining claims are, hоwever, legally sufficient to state the ineffective assistance of counsel claims asserted, see Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674 (1984); see also Young v. State, 661 So. 2d 406, 406 (Fla. 1st DCA 1995); Brunson v. State, 605 So. 2d 1006, 1007 (Fla. 1st DCA 1992); McCoy v. State, 598 So. 2d 169, 170-71 (Fla. 1st DCA 1992); Highsmith v. State, 617 So. 2d 825, 826 (Fla. 1st DCA 1993), and are not conclusively refuted by any of the record excerpts attached to the order dеnying relief. On remand, the trial court should either attach to its order denying relief those portions of the rеcord conclusively showing these claims to be without merit or hold an evidentiary hearing.
AFFIRMED in part, REVERSED in part, аnd REMANDED with directions.
MINER, ALLEN and MICKLE, JJ., concur.