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Rollins v. State

Florida Court of Appeals, Second District

June 8, 2018

EDWIN ROLLINS, #X78152, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Polk County; Wayne M. Durden, Judge.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.

          Edwin Rollins, pro se.

          SILBERMAN, Judge.

         Edwin Rollins appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 that raises four claims of ineffective assistance of counsel.[1] We affirm without comment the summary denial of claims three and four. We reverse the summary denial of claims one and two because the record attachments do not conclusively refute those claims, and we remand for an evidentiary hearing.

         On April 10, 2013, Rollins was charged with burglary of an unoccupied dwelling and resisting arrest without violence. The State filed the charges after Rollins entered a neighbor's apartment to hide from law enforcement. After a Faretta[2] hearing on July 10, 2013, Rollins was allowed to represent himself. At some point he had counsel reappointed, and on October 9, 2013, again requested to represent himself, which the trial court allowed after another Faretta hearing. Rollins represented himself at his jury trial on October 23, 2013, and was convicted of both charges. He had new counsel appointed for sentencing in December 2013. The trial court sentenced Rollins to seven years in prison to be followed by five years of probation for burglary and to time served for resisting arrest.

         Rollins filed a motion for postconviction relief and an amended motion which were both dismissed. He timely filed the operative motion, his second amended motion. Claims one and two are related. Rollins alleged that he advised counsel when they first met that he had permission to enter the residence and requested that counsel verify his invited entry defense. In claim one, Rollins alleged that the State had made two favorable plea offers-an offer of one year and an offer of five years. Rollins alleged that counsel failed to advise or discuss with Rollins the evidence against him, particularly the victim's statement made on the night Rollins was arrested in which she asserted that she did not give Rollins permission to enter her residence. He also alleged that counsel failed to advise him of the maximum penalty he faced. In claim two, Rollins asserted that counsel failed to "compel" the victim's statement and discuss it with Rollins before he rejected the favorable plea offer of one year.

         Rollins alleged that he rejected the plea offers not knowing the strength of the State's case against him or the maximum penalty he faced. If counsel had informed him that the victim had asserted in her statement that she did not give Rollins permission to enter her residence and the maximum penalty he faced, Rollins would have accepted the offers that were less severe than the sentence he received of seven years in prison, followed by five years of probation.

         The postconviction court ordered the State to respond, and the State filed a response with attachments. The postconviction court summarily denied the claims. In doing so, the court attached and incorporated the State's response in the court's one-page order. Rollins timely appealed.

         Rollins asserts on appeal that the postconviction court failed to attach any records to its order that conclusively refute his claims. In doing so, he contends that the State's response does not constitute record attachments. As the State argues in its answer brief, the postconviction court may incorporate the State's response in its order, although it is not the favored practice. See Barnes v. State, 38 So.3d 218, 219-20 (Fla. 2d DCA 2010). The postconviction court's incorporation of and reliance on the State's record attachments is not a ground for reversal.

         Rollins also asserts that the postconviction court erred in summarily denying his motion before he filed his reply to the State's response. The State is correct that rule 3.850 does not provide for a reply but contemplates only a motion and an answer. See Fla. R. Crim. P. 3.850(f)(6); see also Evans v. State, 764 So.2d 822, 823 (Fla. 2000) (determining that the defendant was not denied due process when the trial court disposed of the postconviction motion before the defendant filed a reply). Thus, the postconviction court did not err in entering its order before Rollins filed a reply.

         As to the merits, Rollins contends that the postconviction court should have conducted an evidentiary hearing on claims one and two because they are fact-based claims which were not conclusively refuted by record attachments. Our review of the summary denial of a rule 3.850 motion is de novo. Jennings v. State, 123 So.3d 1101, 1121 (Fla. 2013). The court reviewing a summary denial of a postconviction claim under rule 3.850 must accept the allegations in the motion as true unless they are refuted by the record. Id. Generally, an evidentiary hearing is warranted unless (1) the record conclusively shows that the defendant is not entitled to relief, or (2) the claim is legally insufficient. Id. It is the defendant's burden to establish a prima facie case on the basis of a legally valid claim. Id.

         To prove a claim of ineffective assistance of counsel, the defendant must establish "(1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense." Alcorn v. State, 121 So.3d 419, 425 (Fla. 2013) (citing Strickland v. Washington, 466 U.S. 668, 687 ...


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