Carver Askew v. State of Florida

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA _____________________________ No. 1D18-750 _____________________________ CARVER ASKEW,

Appellant, v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Duval County.

Virginia B. Norton, Judge.

February 27, 2019

PER CURIAM.

We affirm the summary denial of Appellant’s motion for postconviction relief with the exception of his first claim, which asserted that defense counsel was ineffective for misadvising him that if he testified at trial, the jury would automatically learn the nature of his past crimes and the State could go into the specifics of his prior record on cross-examination. Accepting Appellant’s allegations as true, this was a facially sufficient claim of ineffective assistance of counsel. See Parks v. State, 54 So. 3d 1079, 1080 (Fla. 4th DCA 2011); see also Joseph v. State, 214 So. 3d 741, 742 (Fla. 5th DCA 2017); Tyler v. State, 793 So. 2d 137, 141-42 (Fla. 2d DCA 2001). Because the trial court’s colloquy with Appellant regarding the waiver of his right to testify at trial does not conclusively refute this claim, we reverse and remand for an evidentiary hearing. See Everhart v. State, 773 So. 2d 78, 80 (Fla. 2d DCA 2000).

AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings.

WOLF, OSTERHAUS, and JAY, JJ., concur.

_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Carver Askew, pro se, Appellant.

Ashley B. Moody, Attorney General, Tallahassee, for Appellee.