MoreLaw Virtual Receptionists


No More Robo Calls With MoreLaw Receptionists

Following a jury trial, Vogds was convicted of sexual battery of a child under twelve

years of age and lewd or lascivious molestation of a child under twelve years of age, and

sentenced as a sexual predator to life in prison without the possibility of parole on both

counts, running consecutively. This Court affirmed Vogds’s direct appeal without opinion.

See Vogds v. State, 231 So. 3d 463 (Fla. 5th DCA 2017). Vogds then filed the instant rule

3.850 motion. He now appeals the trial court’s summary denial of all four claims for relief.

In claim one, Vogds argues that his trial counsel was ineffective by asking the

victim’s mother if she ever suspected Vogds would harm her children, which opened the

door to her damaging testimony that the victim previously told her that Vogds had

“brushed” her vagina. In claim two, Vogds asserts that his trial counsel was ineffective

by opening the door to inadmissible bad act evidence regarding an incident, during which

Vogds kissed the victim’s mother on the mouth without her consent. In claim three, Vogds

submits that his trial counsel was ineffective by failing to impeach the victim with her

previous inconsistent statements that Vogds did not speak to her when he touched her

and that he never digitally penetrated her. Claim four alleges cumulative error.

“To be entitled to an evidentiary hearing on a claim of ineffective assistance, the

defendant must allege specific facts that are not conclusively rebutted by the record and

which demonstrate a deficiency in performance that prejudiced the defendant.” Jones v.

State, 845 So. 2d 55, 65 (Fla. 2003). When, as here, there was no evidentiary hearing, a

court must accept the factual allegations made by the defendant to the extent that they

are not conclusively refuted by the record. Freeman v. State, 761 So. 2d 1055, 1061 (Fla.

2000). Our review of the postconviction court’s decision to summarily deny the motion

without an evidentiary hearing is de novo. Owen v. State, 986 So. 2d 534, 543 (Fla. 2008).

3

We conclude that the postconviction court erred in summarily denying each claim

in the rule 3.850 motion. The record does not conclusively refute these claims. Based on

the circumstances of this case, it seems that no additional court records could be attached

to the denial order that would conclusively refute the claims.

Accordingly, an evidentiary hearing is necessary to resolve these claims. The court must then decide whether Vogds has established that his counsel’s performance was deficient and if he was prejudiced as a result.