Third District Court of Appeal
State of Florida
Opinion filed April 20, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-0003
Lower Tribunal No. F15-20059
________________
Brandon Owens,
Appellant,
vs.
The State of Florida,
Appellee.
An appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from
the Circuit Court for Miami-Dade County, Marisa Tinkler Mendez, Judge.
Brandon Owens, in proper person.
Ashley Moody, Attorney General, and Sandra Lipman, Assistant
Attorney General, for appellee.
Before LOGUE, MILLER, and LOBREE, JJ.
PER CURIAM.
Appellant, Brandon Owens, appeals the summary denial of his motion
for postconviction relief filed pursuant to Florida Rule of Criminal Procedure
3.850. The motion alleged seven grounds of ineffective assistance of
counsel. We find no error in the denial of claims one, two, three, four, five,
and seven. We conclude, however, that because claim six, alleging that
defense counsel provided ineffective assistance by failing to object to
appellant’s absence at the sentencing hearing, is not conclusively refuted by
the record, it merits remand. Upon remand, the trial court shall conduct an
evidentiary hearing or, in the alternative, append record evidence
conclusively establishing appellant’s absence was either voluntary or did not
result in prejudice. See Fla. R. Crim. P. 3.180(c)(2); Capuzzo v. State,
596
So. 2d 438, 440 (Fla. 1992); Reynolds v. State,
313 So. 3d 129, 133 (Fla.
4th DCA 2021); Strickland v. Washington,
466 U.S. 668, 697 (1984).
Affirmed in part, reversed in part, and remanded.
2
