Jackson v. State, 91-3722
| Decision Date | 28 May 1992 |
| Docket Number | No. 91-3722,91-3722 |
| Citation | 599 So.2d 266 |
| Parties | Michael E. JACKSON, Appellant, v. STATE of Florida, Appellee. 599 So.2d 266, 17 Fla. L. Week. D1376 |
| Court | Florida District Court of Appeals |
Appellant pro se.
No appearance for appellee.
Michael E. Jackson has appealed an order of the trial court summarily denying his motion for post-conviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We reverse, and remand for further proceedings on the motion.
Jackson was convicted of an unspecified offense on October 4, 1990, and was sentenced as an habitual offender. On October 11, 1991, he filed the instant motion with the trial court, alleging that, despite Jackson's request that he do so, trial counsel had failed to file an appeal. The trial court summarily denied the motion, stating in its order that "said motion should be denied for the identical reasons set forth in the court's prior order of January 4, 1991, and therefore the relief prayed for in the motion before the court is duplicious [sic] and, further, the Defendant should be barred from filing any similar motions." The trial court did not attach copies of the previous motion and order to which it referred.
The allegation that a defendant made a timely request for appeal which counsel failed to honor creates a colorable claim of ineffective assistance of counsel, requiring either an evidentiary hearing or attachment of those portions of the record negating the allegation. Williams v. State, 596 So.2d 501 (Fla. 1st DCA 1992). In this case, the trial court denied the motion as successive, but attached neither the previous motion, nor the order ruling thereon. The order herein appealed is therefore reversed, and the case remanded for either attachment of those portions of the files and records conclusively showing that Jackson is entitled to no relief, or for further proceedings under Rule 3.850.
Reversed and remanded with directions.
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Love v. State, 92-3586
...of Appeal; Green v. State, 614 So.2d 1198 (Fla. 1st DCA 1993); Smith v. State, 601 So.2d 611 (Fla. 1st DCA 1992); Jackson v. State, 599 So.2d 266 (Fla. 1st DCA 1992). And, as the trial court found, a motion alleging frustration of a right to appeal by actions of trial counsel is not subject......
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Smith v. State, 96-456
...for failing to appeal despite request to do so, where defendant did not allege that his request was timely); Jackson v. State, 599 So.2d 266 (Fla. 1st DCA 1992); Williams v. State, 596 So.2d 501 (Fla. 1st DCA 1992). Furthermore, with regard to all seven claims, the appellant failed to satis......