Toliver v. State, 98-2664.

• Decision Date: 17 June 1999
• Docket Number: No. 98-2664.,98-2664.
• Citation: 737 So.2d 1142
• Court: Florida District Court of Appeals
• Parties: Johnny W. TOLIVER, Appellant, v. STATE of Florida, Appellee.

737 So.2d 1142

Johnny W. TOLIVER, Appellant, v.STATE of Florida, Appellee.

No. 98-2664.

District Court of Appeal of Florida, First District.

June 17, 1999.

Rehearing Denied July 21, 1999.

Johnny W. Toliver, pro se, for appellant.

Robert A. Butterworth, Attorney General; Trina Kramer, Assistant Attorney General, Tallahassee, for appellee.

WOLF, J.

Johnny W. Toliver appeals the denial of his rule 3.850motion for postconviction relief after an evidentiary hearing.Appellant raises a number of issues on appeal, none of which require reversal, and only one of which merits brief discussion: Whether the trial court abused its discretion by not appointing an attorney to represent appellant at the evidentiary hearing.

This case was previously before the court on appellant's motion for postconviction relief.In Toliver v. State,652 So.2d 1291(Fla. 1st DCA1995), we determined that appellant's claim that counsel was ineffective for failing to file a motion for discharge pursuant to the speedy trial rule stated a preliminary basis for relief.At that time, the trial court had provided us with nothing from the record which demonstrated that appellant had not been entitled to discharge.We, therefore, remanded for the lower court to attach relevant portions of the record to refute appellant's claim or to conduct an evidentiary hearing.The trial court chose to conduct an evidentiary hearing.Prior to the hearing, appellant requested counsel.The request was denied by the trial court.Testimony was presented that prior to the original trial, defense counsel had moved for a continuance within the speedy trial period with appellant's knowledge.The record from the trial proceedings also reflected several defense continuances prior to trial.Based upon this evidence, the trial court denied appellant's motion as having been totally frivolous.¹

A trial court's decision regarding the appointment of counsel in postconviction proceedings is reviewed to determine whether there was an abuse of discretion.SeeWilliams v. State,472 So.2d 738, 740(Fla.1985);Graham v. State,372 So.2d 1363, 1366(Fla.1979).In Johnson v. State,711 So.2d 112(Fla. 1st DCA1998), andRogers v. State,702 So.2d 607(Fla. 1st DCA1997), this court determined that the failure to appoint counsel to represent the defendants in those cases at their evidentiary hearings on their 3.850 motions for postconviction relief had constituted an abuse of the trial courts' discretion because the ineffective assistance of counsel claims raised by those defendants had been complex.In cases involving noncomplex claims, however, a trial court's failure to appoint counsel to represent a defendant at a postconviction evidentiary hearing does not constitute an abuse of discretion.See, e.g., Hylleberg v. State,729 So.2d 409, 410(Fla. 5th DCA1999)(holding that "[w]hether defense counsel adequately advised [the defendant] about his legal rights was a relatively simple fact issue which the trial court resolved against [the defendant]" and that there appeared to be "no basis to conclude that the trial court abused its discretion in not appointing counsel for [the defendant] at the hearing");Richardson v. State,716 So.2d 859(Fla. 5th DCA1998)(concluding, in context of case involving an evidentiary hearing, that "[t]here is nothing about this case that indicates that the court abused its discretion in not appointing counsel in this post-trial matter"), rev. denied,727...