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319 So. 2d 49

Docket Nos. 74-1363, 74-1364.

Alfonso v. State

Clyde ALFONSO, Appellant, v. STATE of Florida, Appellee. Benjamin ALFONSO, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided September 3, 1975.

District Court of Appeal of Florida · decided 1975-09-03

Key passage — most relied on by later courts

“there are questions of fact within the defendant's own knowledge which must be resolved, the defendant must be afforded the opportunity to testify and cross-examine witnesses.”

quoted by 1 later decision, including 875 So. 2d 780 - Bolden v. State

Relies on 166 So. 2d 892 - State v. Weeks · 238 So. 2d 598 - State v. Reynolds · Bryant v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1975-09-03

How this case has been cited

Cited by 6 later decisions — most recently March 2011

6 state decisions

4019751980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1*50 James A. Gardner, Public Defender, Sarasota, and Harold H. Moore, Asst. Public Defender, and Dennis J. Plews, Legal Intern, Bradenton, for appellants.

¶2Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.

¶3McNULTY, Chief Judge.

¶4Clyde and Benjamin Alfonso appeal from an order denying their motion for post-conviction relief filed pursuant to Rule 3.850, RCrP. We reverse.

¶5The basis of the motion is incompetence of trial counsel. The trial court determined that the allegations were sufficient to warrant a hearing on that issue; but only the original trial judge, the prosecutor, and the two allegedly incompetent defense counsel were present at such hearing. Neither of the petitioners nor counsel acting in their behalf were given an opportunity to be present nor did they waive it.

¶6At the conclusion of the hearing the court apparently determined from the testimony that the alleged incompetence of counsel was merely legitimate and reasonable defense tactics or strategy and denied the motion. This appeal ensued.

¶7Although the presence of petitioner or his counsel is not always required at Rule 3.850, supra, hearings,[1] due process demands that where there are questions of fact within the personal knowledge of the petitioner to be resolved, then at least the petitioner must have the opportunity to testify and cross-examine witnesses against him.[2]

¶8Here, appellants' allegations present factual issues involving matters about which they had personal knowledge. The allegations concerned the truthfulness of counsel, the content of conversations between attorney and client and the use or nonuse of evidence made known by defendants. Under these circumstances, where petitioners possess personal knowledge necessary to contradict and cross-examine those denying such material allegations, they must be permitted to be present.

¶9We parenthetically point out here, too, that appellants may be entitled to independent counsel at such a hearing,[3] though we do not now decide that this is necessarily so in this case.

¶10In view whereof, the order appealed from should be, and it is hereby reversed, and the cause is remanded for further proceedings not inconsistent herewith.

¶11BOARDMAN and GRIMES, JJ., concur.

NOTES

¶12[1] See State v. Weeks (Fla. 1964), 166 So.2d 892; Bryant v. State (Fla.App.3d, 1967), 204 So.2d 9; Ballard v. State (Fla.App.3d, 1967), 200 So.2d 597.

¶13[2] See State v. Reynolds (Fla. 1970), 238 So.2d 598; Eby v. State (Fla.App.2d, 1975), 306 So.2d 602.

¶14[3] See State v. Weeks, supra, n. 1.

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