Summary
affirming the denial of a 3.850 allegation where the alleged deficiency - that counsel failed to correct the affidavit of VOP to reflect that two felony offenses had been reduced to misdemeanors - did not affect the outcome of the VOP hearing and thus there was no prejudice to Defendant
Summary of this case from James v. Sec'y, Dep't of Corr.Opinion
No. 4D06-2896.
January 24, 2007. Rehearing Denied February 28, 2007.
Appeal from the Circuit Court, Seventeenth Judicial Circuit, Broward County, Ana I. Gardiner, J.
Steve Flowers, Monticello, pro se.
No appearance required for appellee.
Steve Flowers appeals the order summarily denying his rule 3.850 motion for postconviction relief, claiming ineffective assistance of the attorney who represented him at the hearing on his violation of probation (VOP) and his sentencing on revocation of probation. We affirm.
The amended VOP affidavit included four counts, all representing new offenses for which Defendant was arrested, on two separate occasions, while on probation. Defendant claimed his attorney was ineffective in failing to point out to the judge at the VOP hearing that the offenses in counts (3) and (4) had been reduced from felonies to misdemeanors prior to the hearing. Without obtaining a state response on the merits, the trial court summarily denied the motion "for the reasons previously stated by this Court and the 4th DCA."
Although we have considered previous appeals from this defendant, this court has not previously ruled on the same or a related ground for relief; if the trial court has, it did not attach any portions of the record so indicating. Thus, it is not clear to which previously stated reasons the trial court could have been referring. Nevertheless, we affirm on the merits because Flowers did not demonstrate a reasonable likelihood that the outcome of his VOP hearing would have been any different had counsel pointed out that, of the four offenses on which the amended affidavit of VOP was based, the two felony offenses had been reduced to misdemeanors prior to the hearing.
Affirmed.
WARNER, SHAHOOD and TAYLOR, JJ., concur.