Stephen Drakus v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D17-4457 _____________________________

STEPHEN DRAKUS,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Nassau County. Robert M. Foster, Judge.

May 2, 2019

PER CURIAM.

After his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief was denied following an evidentiary hearing, the appellant raises three issues on appeal. We reject the appellant’s argument on Issue I and agree with his arguments on Issues II and III.

In Issue I, the postconviction court did not abuse its discretion in denying the appellant’s motion to appoint postconviction counsel. See Simmons v. State, 99 So. 3d 620, 624 (Fla. 1st DCA 2012) (recognizing there is no absolute right to counsel in postconviction proceedings and the decision to provide counsel rests in the sound discretion of the trial court).

Regarding Issues II and III, the State concedes that the postconviction court erred by failing to make any factual findings or conclusions either orally or in its written order. See Fla. R. Crim. P. 3.850(f)(8)(A) (requiring such findings following an evidentiary hearing). As such, this case cannot be reviewed on appeal and must be remanded for a proper order. See White v. State, 198 So. 3d 1130, 1131 (Fla. 4th DCA 2016). Even though the State argues that the court must have regarded defense counsel’s testimony as more credible, the postconviction court never said as much, and we cannot make such an assumption. See id. While it also appears that the testimony does not support a finding of prejudice, the lack of factual findings precludes this Court from determining the sufficiency of the trial court’s conclusion under the prejudice prong. Marcus v. State, 201 So. 3d 851, 852 (Fla. 1st DCA 2016). The proper remedy is to remand with instructions for the postconviction court to make the necessary findings upon the record to resolve Issues II and III. Id.

AFFIRMED in part, REVERSED in part, and REMANDED. B.L. THOMAS, C.J., and ROBERTS and OSTERHAUS, JJ., concur.

_____________________________

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

Stephen Drakus, pro se, Appellant.

Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.