Curtis v. State, 98-02857
| Decision Date | 20 November 1998 |
| Docket Number | No. 98-02857,98-02857 |
| Citation | 757 So.2d 513 |
| Parties | Michael CURTIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael Curtis appeals the summary denial of his motion for postconviction relief. The trial court denied the motion on the basis that all the issues outlined in the motion had either been unsuccessfully presented to this court in Curtis's direct appeal or should have been raised on appeal. Of the eight issues submitted in Curtis's motion, only two were properly denied, and, accordingly, on the others we reverse.
Of the six remaining issues, five complain that counsel failed to register an objection or failed to file an appropriate motion to preserve potential error for review, and the sixth incorporates these into a claim of cumulative ineffectiveness of trial counsel. The trial court denied these claims, presuming that these issues had been raised on appeal because similar issues were set forth by trial counsel in the statement of judicial acts to be reviewed on appeal. The court's reliance upon the statement to document the actual issues raised on appeal was misplaced, as most of these issues in fact had not been briefed.1
The trial court's determination that Curtis's claims should properly have been pursued on plenary appeal is erroneous. To the contrary, the arguments raised by Curtis were not and could not have been presented on appeal because the issues were not preserved by trial counsel, which is precisely the point Curtis argues. See Knight v. State, 710 So.2d 648 (Fla. 2d DCA 1998) ().
Accordingly, it is ordered that the denial of the motion for postconviction relief as to issue two and issues four through eight is reversed and remanded for reconsideration. On remand, unless the case file and record conclusively demonstrate that Curtis is not entitled to relief, an evidentiary hearing shall be conducted. If the court again concludes that summary denial is proper, it must attach to its order those portions of the case file and record which refute Curtis's claims. We affirm the trial court's denial of the motion as to issues one and three.
Affirmed in part, reversed in part, and remanded.
...
To continue reading
Request your trial
-
Rodriguez v. State
...based its conclusion on the statement of judicial acts to be reviewed, a practice this court has disapproved. See Curtis v. State, 757 So.2d 513 (Fla. 2d DCA Nov. 20, 1998). Generally, this court does not address ineffective assistance claims on direct appeal and, in this case, the issue in......