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Johnson v. State

District Court of Appeal of Florida, Second District
Dec 11, 1998
723 So. 2d 879 (Fla. Dist. Ct. App. 1998)

Summary

reversing summary denial of rule 3.850 motion claiming counsel refused to allow defendant to take stand in own defense where attachments did not show that defendant waived his right to testify or refute claim of prejudice resulting from jury not hearing his testimony

Summary of this case from Dames v. State

Opinion

No. 98-03596

Opinion filed December 11, 1998.

Appeal pursuant to Fla. R. App. P. 9.140(i) from the Circuit Court for Hillsborough County; Cynthia A. Holloway, Judge.


Joseph Johnson appeals the trial court's order denying his motion for post conviction relief. Only one ground cited by Johnson merits discussion, upon which we reverse.

Johnson claims that his trial attorney refused to permit him to take the stand in his own defense. The trial court concluded that Johnson's right to testify on his behalf had been waived, and that he had not shown that his failure to testify resulted in any prejudice. However, the attachments to the court order do not show that Johnson's right to testify in his own defense was waived, nor do they refute Johnson's claim of prejudice resulting from the jury not hearing his testimony. See Strickland v. Washington, 466 U.S. 668 (1984);Isorio v. State, 676 So.2d 1363, 1364 (Fla. 1996) (holding that a defendant who claims ineffective assistance of counsel based on counsel's refusal to permit defendant to testify must meet both prongs of Strickland).

Accordingly, this case is remanded for the trial to court to either conduct an evidentiary hearing, or to deny the claim without a hearing if record attachments conclusively refute Johnson's allegations concerning whether counsel provided ineffective assistance in denying him his right to testify on his behalf.

Affirmed in part, reversed in part, and remanded.

THREADGILL, A.C.J., and FULMER and SALCINES, JJ., Concur.


Summaries of

Johnson v. State

District Court of Appeal of Florida, Second District
Dec 11, 1998
723 So. 2d 879 (Fla. Dist. Ct. App. 1998)

reversing summary denial of rule 3.850 motion claiming counsel refused to allow defendant to take stand in own defense where attachments did not show that defendant waived his right to testify or refute claim of prejudice resulting from jury not hearing his testimony

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

Johnson v. State

Case Details

Full title:JOSEPH MICHAEL JOHNSON, Appellant, v. STATE OF FLORIDA, Appellee

Court:District Court of Appeal of Florida, Second District

Date published: Dec 11, 1998

Citations

723 So. 2d 879 (Fla. Dist. Ct. App. 1998)

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