Smith v. StateSmith v. State
No appearance for appellee.
PER CURIAM.
Robert Lee Smith has appealed an order of the trial court summarily denying his motion for post-conviction relief pursuant to
In March 1990, Smith was convicted of battery on a law enforcement officer and resisting arrest with violence, and was sentenced to five years incarceration. No appeal was filed. In May 1991, Smith filed the instant motion alleging ineffective assistance of trial counsel in that counsel: 1) failed to call alibi witnesses of which he was aware, and 2) failed to file an appeal. The trial court denied the motion, finding that the first ground was refuted by the record (the order purports to include pertinent portions of that record, but does not). As to the second ground, the court found the motion legally insufficient because Smith did not allege that he requested his counsel to file an appeal.
As to ground one, Smith alleges that his trial counsel was ineffective for failure to investigate alibi witnesses. This allegation states a facially sufficient claim for relief. See Mallory v. State, 577 So. 2d 987, 988 (Fla. 4th DCA 1991). Therefore, the trial court was required either to attach a copy of that portion of the files and records which conclusively showed that Smith was entitled to no relief, or to proceed as described in
As to the allegation that trial counsel was ineffective for failing to file Smith‘s appeal, we agree that such an allegation is legally insufficient unless the movant also avers that counsel was requested to file an appeal. See Harris v. State, 596 So. 2d 500 (Fla. 1st DCA 1992). Therefore, we affirm the order of the trial court as to this allegation. However, as in Harris, we affirm without prejudice to the filing by Smith of a sworn motion pursuant to
Affirmed in part, reversed in part, and remanded with directions.
JOANOS, C.J., and ERVIN and MINER, JJ., concur.