FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Polk County; Wayne M. Durden,
Jo Bondi, Attorney General, Tallahassee, and Wendy
Buffington, Assistant Attorney General, Tampa, for Appellee.
Rollins, pro se.
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. 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.
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 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.
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
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.
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.
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.
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.
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.
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 ...