Birch v. State
The Fifth DCA reversed the summary denial of a 3.850 motion raising three ineffective-assistance claims (failure to seek severance, failure to object to a constructive-possession jury instruction, and faulty advice about the necessity of testifying to support a necessity defense). The court held that the record attachments relied on by the postconviction court—a pretrial bifurcation discussion and a standard right-to-testify colloquy—did not specifically contradict the movant's factual allegations, so summary denial was improper on all three grounds.
Key facts
- Birch was convicted and on direct appeal the First District found certain possession-theory issues were unpreserved and did not constitute fundamental error.
- Birch filed a 3.850 postconviction motion raising three ineffective-assistance claims: failure to seek severance, failure to object to a constructive-possession jury instruction, and providing faulty advice about testifying to support a necessity defense.
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Why it matters
This opinion reinforces and applies the well-established but frequently litigated rule that postconviction courts must attach record excerpts that specifically and directly contradict a movant's IAC allegations—generic… — full analysis with a trial
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