Brown v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT January Term 2007 MONTE D. BROWN, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D06-4309 [ May 30, 2007 ] PER CURIAM. Monte Brown appeals the trial court s denial of his motion for postconviction relief under Florida Rule of Civil Procedure 3.850. We affirm in all respects except one, that being the trial court s denial of the motion as to Ground 5. We reverse and remand the denial of Brown s motion as to Ground 5 alleging that trial counsel rendered ineffective assistance by advising Brown not to take the stand even after the trial court indicated that his testimony would likely be necessary to warrant a justifiable use of deadly force jury instruction, which was not ultimately given. Because the record before this Court does not refute Brown s claims of self-defense or reveal the nature of trial counsel s advice to him regarding taking the stand, we reverse and remand to the trial court for reconsideration of Ground 5 of Brown s Rule 3.850 motion. On remand, the trial court shall either provide record attachments conclusively refuting Brown s claim or conduct an evidentiary hearing. Affirmed In Part; Reversed and Remanded In Part. GUNTHER, FARMER and MAY, JJ., concur. * * * Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ana I. Gardiner, Judge; L.T. Case No. 00-0425 CF10A. Monte D. Brown, Century, pro se. No appearance required for appellee. Not final until disposition of timely filed motion for rehearing 2
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