County Criminal Court: CRIMINAL PROCEDURE – Post Conviction Relief – Defendant failed to demonstrate error in the case below. Once an evidentiary hearing is granted, it is the defendant’s obligation to prove his allegations.  – Order denying motion for post conviction relief is affirmed. Duff v. State, No. CRC 03-85 APANO (Fla. 6th Cir. App. Ct. June 21, 2004).

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

MICHAEL J. DUFF

 

            Appellant,

 

v.                                                                                                                                                                   Appeal No. CRC 03-85 APANO

UCN522003AP000085APANO

STATE OF FLORIDA

 

            Appellee.

__________________________/

 

Opinion filed ________________.

 

Appeal from a decision of

the Pinellas County Court

County Judge Patrick Caddell

 

Michael J. Duff, Pro Se

 

Kristen Howatt, Esq.

Assistant State Attorney

ORDER AND OPINION

 

            THIS MATTER is before the Court on Michael Duff’s appeal from a decision of the Pinellas County Court to deny his motion for post-conviction relief. After reviewing the briefs and record, this Court affirms the decision.

            The defendant was granted an evidentiary hearing on his claims. A review of the transcript of the evidentiary hearing reveals that there was conflicting testimony about whether or not the defendant was advised about the consequences of entering his plea. The defendant claimed that his attorney did not properly inform him, but his attorney testified that she did. The trial judge resolved the conflict in the testimony against the defendant. There is no error.

            The defendant also claims that he was on psychotropic medication at the time he entered his plea, and that the State failed to refute this allegation. The defendant appears to misunderstand the nature of an evidentiary hearing. Although the defendant’s claims must be accepted as being true for purposes of deciding to grant an evidentiary hearing, once such a hearing is granted, the initial burden is then on the defendant to go forward with evidence to support his allegations. See Thomas v. State, 206 So.2d 475 (Fla. 2d DCA 1968). The transcript of the evidentiary hearing reveals that the defendant failed to present any evidence supporting his contention. Thus, there was no burden on the State to disprove the allegations. The defendant failed to meet his burden. Therefore, it was proper for the trial court to deny the requested relief.

            IT IS THEREFORE ORDERED that the trial court’s order denying the defendant’s motion for post-conviction relief is affirmed.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of June, 2004.

                                                                                    _________________________

                                                                                    James R. Case

                                                                                    Circuit Judge

 

                                                                                    ___________________________

                                                                                    Nancy Moate Ley

                                                                                    Circuit Judge

 

                                                                                    __________________________

                                                                                    John A. Schaefer

                                                                                    Circuit Judge

cc:   State Attorney        Michael Duff