Jones v. State, 80-823

• Decision Date: 11 June 1980
• Docket Number: No. 80-823,80-823
• Citation: 384 So.2d 736
• Parties: Eddie George JONES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 736

384 So.2d 736

Eddie George JONES, Appellant, v. STATE of Florida, Appellee.

No. 80-823.

District Court of Appeal of Florida, Fourth District.

June 11, 1980.

Eddie George Jones, appellant, pro se.

No appearance on behalf of appellee.

BERANEK, Judge.

This is a pro se appeal by the defendant pursuant to Rule of Appellate Procedure 9.140(g), governing appeals from summary denials of Florida Rule of Criminal Procedure 3.850 motions for post-conviction relief. When a trial court denies a 3.850 motion without an evidentiary hearing, Florida Rule of Appellate Procedure 9.140(g) sets the standard for review as follows:

Unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing.

The appellate record considered by this court in determining the conclusive demonstration of non-entitlement to relief consists of copies of the defendant's 3.850 motion, the order denying it, and any motions for rehearing and orders on such motions.

To appreciate the appellate procedure under subsection (g) of Rule of Appellate Procedure 9.140, it is necessary to consider the trial court procedure outlined in Rule of Criminal Procedure 3.850. This rule states in relevant part:

If the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief, the motion shall be denied without a hearing. In those instances when such denial is not predicated upon the legal insufficiency of the motion on its face, a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief shall be attached to the order. (Emphasis supplied.)

In the present case, the trial court entered a rather detailed order denying defendant's 3.850 motion without an evidentiary hearing. In doing so, the trial court recited that the "file" had been fully reviewed, but attached no portions of it. As such, the case comes before this Court with a record consisting solely of the defendant's motion alleging ineffective assistance of counsel and the trial court's order denying it. The trial court further noted that the defendant had previously appealed to the Fourth District Court of Appeal, which affirmed without opinion. In ruling on the specific issue of the ineffective assistance of counsel, the trial court found the allegation to be without merit and stated that, "The Fourth District Court of Appeal with the benefit of the entire transcript, by its per curiam affirmations has found against the contention of ineffective representation of counsel." In so ruling, the trial court erred. It is true that the defendant took a prior appeal to this Court which was the subject of a per curiam affirmance issued December 19, 1979. Thereafter, the record on appeal, consisting of the trial transcript and other documents, was returned to the trial court and, we presume, reviewed by the trial court in ruling on the allegation of ineffective assistance of counsel.

It is clear that a criminal defendant cannot initially raise ineffective assistance of counsel on a direct appeal from his conviction. State v. Barber, 301 So.2d 7 (Fla.1974); Randall v. State, 346 So.2d 1233 (Fla.3d DCA 1977). Instead, the issue should be raised initially in a 3.850 motion before the trial court. We sympathize with the trial judge. In this case, Judge Thomas Coker, Jr., presided over the defendant's trial where he was found guilty, convicted and sentenced. A full appeal was then had before this District Court and Judge Coker's conviction of defendant was affirmed without opinion. Judge Coker, via defendant's 3.850 motion, was then asked to review counsel's effectiveness in a trial he previously presided over and which this Court affirmed. Defendant subsequently appealed Judge Coker's ruling to this Court. Obviously,...