State v. Samora
State v. Samora, 2023 UT 5 (Hagen, J.)
After the defendant’s conviction for robbery, he filed a rule 23B motion on appeal
asserting that his attorney was ineffective for not eliciting evidence that the
robber did not have tattoos like the defendant. The Utah Court of Appeals denied
that motion because the defendant did not produce evidence in his original 23B
motion that he had those tattoos at the time of the robbery, and the Court of
Appeals declined to consider a new affidavit that was filed with his reply that
filled that gap in the evidence. The Utah Supreme Court affirmed, holding:
- A defendant who fails to make a showing in the rule 23B motion cannot cure that deficiency by filing additional affidavits with the reply.
- Practice tip: In a footnote, the Supreme Court stated that it offered no opinion on whether the rules permitted a defendant to file a motion to supplement or amend a rule 23B motion.