Diaz v. State

Full title: HECTOR ARMANDO DIAZ, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Third District

Date published: Nov 29, 1988

534 So. 2d 817 (Fla. Dist. Ct. App. 1988)

Opinion

No. 88-684.

November 29, 1988.

Appeal from the Circuit Court, Dade County, Arthur Rothenberg, J.

Michael A. Levin, Calianne P. Lantz, Miami, for appellant.

Robert A. Butterworth, Atty. Gen., and Julie S. Thornton, Asst. Atty. Gen., and Sharon Azoulay, Certified Legal Intern, for appellee.

Before BARKDULL and DANIEL S. PEARSON, JJ., and MELVIN ORFINGER, Associate Judge.

PER CURIAM.

Diaz appeals the denial of his motion for post-conviction relief based on alleged ineffective assistance of counsel. To prevail and set aside a nolo or guilty plea alleging ineffectiveness of original trial counsel, a defendant must show that he, in fact, had a "viable" defense. Frazier v. State, 447 So.2d 959 (Fla. 1st DCA 1984). No such showing was made before the trial court during the hearing on the appellant's 3.850 Florida Rules of Criminal Procedure motion, and therefore the trial court's denial on the motion is affirmed.

AFFIRMED.