holding that a challenge to the trial court’s refusal to consider a read-back of testimony must be preserved by objection
How later courts described this case
- holding that a challenge to the trial court’s refusal to consider a read-back of testimony must be preserved by objection
Written by the judges who cited it.
The opinion
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
PHYLLIS BROWN,
Appellant,
v. Case No. 5D16-2232
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed December 16, 2016
3.850 Appeal from the Circuit
Court for Seminole County,
Marlene M. Alva, Judge.
Phyllis Brown, Ocala, pro se.
No Appearance for Appellee.
PER CURIAM.
Appellant, Phyllis Brown, appeals the summary denial of her motion for
postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, in which
she set forth six claims of ineffective assistance of trial counsel.
In ground one, Appellant asserted that trial counsel did not properly prepare for
trial. For example, he allowed the State to enter exhibits into evidence that defense
counsel did not previously see. Appellant does not state how the admission of this
evidence prejudiced her, making ground one legally insufficient. We reverse the trial
court’s denial of ground one with instructions to afford Appellant at least one opportunity
to amend the claim to make it legally sufficient. Fla. R. Crim. P. 3.850(f)(3).
In ground two, Appellant points out that during deliberation, the jury asked to
review the victim’s testimony. The trial court answered that “there [was] no transcript.”
Appellant claims that her counsel was ineffective by failing to object to the court’s
response, and by failing to request that the judge inform the jury that the court reporter
could read back the desired testimony. See Romero v. State, 169 So. 3d 1261, 1263
(Fla. 5th DCA 2015) (holding that a challenge to the trial court’s refusal to consider a read-
back of testimony must be preserved by objection). In ruling on the rule 3.850 motion,
the postconviction court did not address this second ground on the merits nor did it attach
records conclusively refuting this claim. Accordingly, we reverse the postconviction
court’s denial of ground two and remand so that the postconviction court can address the
merits of the claim and either attach records conclusively refuting the claim or conduct an
evidentiary hearing.
In ground three, Appellant argues that she was dissatisfied with how defense
counsel handled witness Newton; however, she does not specify how her counsel was
ineffective or how she was prejudiced. We find that ground three is facially insufficient.
Thus, the postconviction court’s denial is reversed, and we remand to provide Appellant
the opportunity to amend this claim to make it legally sufficient. Fla. R. Crim. P.
3.850(f)(3).
We affirm the postconviction court’s denial of Appellant’s grounds four, five, and
six without further discussion.
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AFFIRMED IN PART, REVERSED IN PART, REMANDED WITH
INSTRUCTIONS.
LAWSON, C.J., ORFINGER and EDWARDS, JJ., concur.
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