Mims v. State, 95-4032
| Decision Date | 02 May 1996 |
| Docket Number | No. 95-4032,95-4032 |
| Parties | 21 Fla. L. Weekly D1067 Raymond Alonzo MIMS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
An appeal from the Circuit Court for Escambia County. Joseph Q. Tarbuck, Judge.
Raymond Alonzo Mims, pro se.
Robert A. Butterworth, Attorney General; Thomas Crapps, Assistant Attorney General, Tallahassee, for Appellee.
Raymond Alonzo Mims appeals from an amended order denying his June 1994 motion for postconviction relief. Fla.R.Crim.P. 3.850. We reverse and remand for an evidentiary hearing. Havis v. State, 555 So.2d 417 (Fla. 1st DCA 1989). The motion, in pertinent part, alleged ineffective assistance of counsel based on the trial attorney's refusal to permit the appellant to testify in his own behalf. See Mims v. State, 656 So.2d 577 (Fla. 1st DCA 1995) (). On remand, the trial court addressed counsel's alleged failure to allow the appellant to testify, and it attached a September 1995 affidavit prepared by defense counsel after the appellant filed his Rule 3.850 motion. Counsel expressly denied ever telling the appellant that he could not testify or preventing him from testifying. Relying solely on this affidavit, the trial court concluded that an evidentiary hearing would be "an exercise in futility," and it denied the motion.
The appellant contends that it was reversible error to deny his motion summarily, and the state correctly concedes that the affidavit does not constitute sufficient evidence to refute the claim in this case. We are constrained to reverse the order and to remand for an evidentiary hearing addressing the new factual matters raised in the affidavit, which serve as "the functional equivalent of testimony" contradicting the appellant's sworn allegations. Cintron v. State, 508 So.2d 1315, 1316 (Fla. 2d DCA 1987) (); Havis, 555 So.2d at 418; Harrell v. State, 458 So.2d 901, 902 (Fla. 2d DCA 1984).
An affidavit of counsel that was unavailable to the trial court when the Rule 3.850 motion was filed is not part of the "files or record" on which the court may solely rely to refute conclusively the appellant's allegations pursuant to Rule 3.850(d). See, e.g., Maddry v. State, 649 So.2d 334 (Fla. 1st DCA 1995) (...
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...either based on the motion, files, and record, or based on the pleadings. See Crim. P. 35(c)(3)(IV)–(V) ; cf. Mims v. State , 672 So.2d 662, 663 (Fla. Dist. Ct. App. 1996) (stating that an affidavit of counsel that was unavailable to the trial court when the postconviction motion was filed ......
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Fitzgerald v. State, 1D04-2647.
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...on which the court may solely rely to refute conclusively the appellant's allegations pursuant to Rule 3.850(d)." Mims v. State, 672 So. 2d 662, 663 (Fla. 1st DCA 1996). We, therefore, reverse the summary denial of claims Three, Five, Six, Thirteen, Fourteen, Sixteen, Eighteen, Nineteen, Tw......