03-1616 THOMPSON V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 03-1616 THOMPSON V. STATE

Case Date: 11/26/2003

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2003

CEDRIC THOMPSON, Appellant, vs. THE STATE OF FLORIDA, Appellee.

** ** ** ** ** CASE NO. 3D03-1616 LOWER TRIBUNAL NOS. 94-20325 94-17438

Opinion filed November 26, 2003. An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2)from the Circuit Court for Miami-Dade County, David Young, Judge. Cedric Lemar Thompson, in proper person. Charles J. Crist, Jr., Attorney General, and Jill K. Traina, Assistant Attorney General, for appellee. Before COPE, GODERICH and SHEVIN, JJ. SHEVIN, Judge. We reverse the order summarily denying defendant's motion for post-conviction relief based on ineffective assistance of trial counsel. The court erred in concluding that the motion

was untimely, as it was filed within two years of the conviction becoming final. Fla. R. Crim. P. 3.850. Additionally, the

motion was improperly denied on grounds that the claims asserted by defendant were or could have been raised on direct appeal. Ineffective assistance of trial counsel claims are properly raised in post-conviction relief motions, not direct appeals. Fla. R. Crim. P. 3.850; Robinson v. State, 637 So. 2d 998 (Fla. 1st DCA 1994). Moreover, although the state, on appeal,

addresses the merits of the defendant's claims, those claims appear facially sufficient and must be considered by the trial court on remand. On remand, the court may attach to its order

those portions of the record which conclusively show that the movant is not entitled to relief, see Fla. R. Crim. P. 3.850(d), or, alternatively, must conduct an evidentiary hearing. Reversed and remanded.

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