Stephen Drakus v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-4457
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STEPHEN DRAKUS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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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.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Stephen Drakus, pro se, Appellant.
Ashley Moody, Attorney General, and Heather Flanagan Ross,
Assistant Attorney General, Tallahassee, for Appellee.
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