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I received an order striking grounds 1 and 8 of amended

motion for postconviction relief. The...
I received an order striking grounds 1 and 8 of amended motion for postconviction relief. The were 13 grounds filed. I only have 7 days left to respond to this order and don't know what the response should be.
Ground one: Defendant was Denied Due process rights under Florida Constitution Article 1 and 9 and US Constitution where trial counsel failed to perform Vore Dire of prospective jurors.
Supporting Fact: Exibit "A" displays Trial transcripts of trial court questioning the fact that possible Jurors were not reviewed under Vore Dire Procedures.
Trial Counsel’s Error of not performing Vore Dire is a failure that reaches Constitutional Magnitude based on Defendant’s Fundamental Right to have a Jury that is impartial and Fair. Such an Error can not be excused as trial strategy where a fair trial is vital to a selection of a fair Jury.
This error by trial counsel prejudiced defendant based on fact that Sherri Pryor was selected as a juror who had suffered from domestic violence along with possibly other jurors. This error by trial counsel caused defendant to be prejudicially deliberated upon by a partial jury. If not for counsel’s error the outcome would have been different
The state is required to present facts rebutting these facts where an evidentiary hearing is warranted.
Ground 8: Defendant was denied due process rights under Florida Constitution Art 1 &9 and U.S. Constitution when trial counsel failed to prepare for trial in failing to produce phone records.
Supporting facts: Exhibit “G” displays trial transcripts where state challenged the believability of the Defense witness’s testimony and the necessity to produce such evidence was vital. This error of not producing phone records to support defense witness’s testimony reached constitutional magnitude due to the defendant relying on this witness to support his claim of innocence.
Trial counsel’s error prejudiced the defendant based on defense witness being discredited for the lack of records. If not for trial counsel’s error, the defendant would have been able to establish evidence supporting his innocence through this witness and therefore the outcome would have been different.COURT RESPONDS: The court finds that Ground 1 is facially insufficient under Caratelli v. State, 961 So. 2d 312, 323-25 (Fla. 2007) and Ground 8 is facially insufficient under Strickland v. Washington, 466 U.S. 668, 687 (1984). In accordance with Florida Rule of Criminal Procedure 3.850(f)(3), Defendant is hereby given 60 days from the date of this order in which to amend the motion to sufficiently state these claims.
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Answered in 1 hour by:
9/3/2017
Law Educator, Esq.
Category: Legal
Satisfied Customers: 125,787
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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The failure to question jurors in voir dire is not a denial of due process rights, as there is no mandatory duty or obligation of the defense to engage in the voir dire in general. What it would potentially be considered is INEFFECTIVE ASSISTANCE OF COUNSEL for failure to insure that there was a fair and impartial jury being selected.

Again, in count 8 you are arguing the wrong claim. The conduct complained of in count 8 is again ineffective assistance of counsel. It is not a denial of due process because the state actor did not prevent you from introducing the evidence nor did they prevent your attorney from engaging in voir dire.

So the counts you are describing you are labeling as the wrong thing, you are claiming it is a denial of your due process, but it is in reality failure of your own attorney meaning ineffective assistance of counsel.

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Customer reply replied 10 months ago
I appreciate your prompt response. In this order, it states "Defendant is prohibited from raising any new claims in his amended motion." How could I respond to this order? Do I have a chance to re-do and re-submit the entire amended motion? Is there any way to have the time extended to file a new claim or resubmit this motion? I filed this in March of 2015 and I just received the order striking grounds for amended motion for postconviction relief July 13, 2017.

Thank you for your reply.

No, you cannot add in any new claims, the court has said you cannot add in any new claims. You can get more time to resubmit, but if the court already said no new claims can be raised in your motion, you would be really stuck. All you can do is resubmit using the same exact claims in 1 and 8 and say that this denied you your due process and was an ineffective assistance of counsel. Then in your motion you need to say that as you are a pro se litigant and your pleadings are entitled to liberal interpretation in order to do substantial justice. See: Baldwin County Welcome Center v. Brown, 466 US 147 (1984). You would argue that you are not adding in any new claims, the claims are the same and the court should have interpreted the due process claim caused by your own attorney as an ineffective assistance of counsel claim.

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Customer reply replied 10 months ago
Is this a matter that you could draft the letter? If so, what would that fee be? I have a very limited time to respond to the order, and I don't want to waste the opportunity.

Thank you for your reply.

I am afraid that state law forbids anyone on this site from engaging in such pleading drafting. I am sorry.

Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.

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Customer reply replied 10 months ago
I was not aware of that, but thank you. The cases that you have referenced, is there a site that I can view them? I'm hoping to at least see the format and get an idea of how to respond to this order.

Thank you for your reply.

You would need to go to the court library and get access there to westlaw or lexisnexus which is free. If you access it at home, they will charge you significant $$ for access. The court library also will have a form book that should have templates for your response if you ask the librarian for assistance.

Law Educator, Esq.
Category: Legal
Satisfied Customers: 125,787
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Law Educator, Esq. and 87 other Legal Specialists are ready to help you
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Customer reply replied 10 months ago
Great. Thank you so much.

Thank you.

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