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Guilty Pleas Do Not Preclude Ineffective Assistance of Counsel Claims Based on Double Jeopardy

In Barritt v. State, 38 Fla. L. Weekly D2183a (Fla. 1st DCA 2013), Barritt appealed an order summarily denying his Rule 3.850 ineffective assistance of counsel motion and amended motion for post-conviction relief.

The First District Court of Appeal found that the lower court erred in denying Barritt's claim, labeled as ground five in his amended motion, that counsel was ineffective in failing to advise him of a double jeopardy defense as to the charge of possession of child pornography with intent to promote and the charge of possession of child pornography. According to his motion, Barritt would not have accepted the negotiated plea had he been aware of the defense.

Contrary to the trial court's conclusion that he was barred from raising this claim based upon his negotiated plea, the Appellate Court found that such a plea did not preclude an ineffective assistance of counsel claim based on counsel's alleged failure to challenge the charges on double jeopardy grounds. The Appellate Court reversed the order as to the denial of this claim and remanded with instructions that the trial court either attach portions of the record conclusively refuting the claim or conduct an evidentiary hearing.

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