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Jensen v. State

District Court of Appeal of Florida, Fourth District
Sep 19, 2007
964 So. 2d 812 (Fla. Dist. Ct. App. 2007)

Summary

reversing summary denial of a post-conviction claim that defense counsel was ineffective for allowing the movant to appear in prison attire and in failing to object to the movant's appearing before the jury in leg shackles which the jury actually saw and heard

Summary of this case from Leigh v. State

Opinion

No. 4D07-40.

September 19, 2007.

Appeal from the Circuit Court, Seventeenth Judicial Circuit, Broward County, Ana I. Gardiner, J.

David Jensen, Moore Haven, pro se.

Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.


David Jensen appeals the summary denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court's denial of all claims, except claims five and seven.

In claim five of the postconviction motion, appellant alleged that counsel was ineffective in allowing him to appear at his jury trial in prison attire and in failing to object to his appearing before the jury in leg shackles. He alleged that the jury actually saw and heard the iron shackles. Because appellant's claim of ineffective assistance is facially sufficient and not conclusively refuted by the record, the trial court erred in summarily denying this claim. See Miller v. State, 852 So.2d 904 (Fla. 4th DCA 2003) (holding that the defendant's claim that counsel was ineffective for failing to object to his appearing before the jury in leg restraints was facially sufficient).

In claim seven, appellant alleged that counsel provided ineffective assistance by failing to call certain alibi witnesses at trial. Because appellant's motion alleged availability of the witnesses and otherwise met the requirements of Nelson v. State, 875 So.2d 579 (Fla. 2004), we hold that it was facially sufficient.

Accordingly, we reverse and remand for an evidentiary hearing or attachment of portions of the record that conclusively refute appellant's claims five and seven.

Affirmed in part; Reversed in part and Remanded.

SHAHOOD, C.J., and WARNER, J., concur.


Summaries of

Jensen v. State

District Court of Appeal of Florida, Fourth District
Sep 19, 2007
964 So. 2d 812 (Fla. Dist. Ct. App. 2007)

reversing summary denial of a post-conviction claim that defense counsel was ineffective for allowing the movant to appear in prison attire and in failing to object to the movant's appearing before the jury in leg shackles which the jury actually saw and heard

Summary of this case from Leigh v. State
Case details for

Jensen v. State

Case Details

Full title:David JENSEN, Appellant, v. STATE of Florida, Appellee

Court:District Court of Appeal of Florida, Fourth District

Date published: Sep 19, 2007

Citations

964 So. 2d 812 (Fla. Dist. Ct. App. 2007)

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