PATRICK ROLLINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Patrick Rollins appealed the summary denial of his Rule 3.850 motion claiming ineffective assistance of counsel for failing to investigate and present three witnesses who could testify to his innocence. The court reversed and remanded, finding the motion facially insufficient but allowing Rollins an opportunity to file an amended motion with proper factual allegations.
The motion was facially insufficient because Rollins failed to allege the full identity of the witnesses, their addresses or locations, and whether each was available for trial. However, Rollins's agreement not to call witnesses does not conclusively refute an ineffective assistance claim for failure to investigate, as he may have believed it was too late to call witnesses. The court reversed with prejudice and remanded to allow Rollins to file a facially sufficient amended motion within thirty days.
[1] A claim for ineffective assistance of counsel based on failure to investigate and call witnesses requires alleging the identity of the witnesses, their testimony, their a…
[2] A defendant's statement of satisfaction with counsel's representation does not conclusively refute an ineffective assistance claim for failure to call witnesses, especial…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A claim for ineffective assistance of counsel for failing to investigate and call witnesses at trial is sufficient if it "allege[s] the identity of the witnesses, their testimony, that the witnesses were available to testify at the trial, and how this lack of testimony prejudiced the outcome of the verdict."”
Establishes the pleading requirements for an ineffective assistance claim based on failure to investigate witnesses.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRollins was convicted of crimes and filed a postconviction motion alleging his counsel failed to investigate and depose three witnesses who would have…
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PER CURIAM.
Appellant, Patrick Rollins, appeals from the summary denial of his postconviction motion 'filed pursuant to Florida Rule of Criminal Procedure 3.850 in which he alleges that his counsel was ineffective for failing to investigate and depose three witnesses who would testify that he did not commit the crimes of which he was convicted.
Appellant has failed to state a sufficient claim in his motion. A claim for ineffective assistance of counsel for failing to investigate and call witnesses at trial is sufficient if it “allege[s] the identity of the witnesses, their testimony, that the wit nesses were available to testify at the trial, and how this lack of testimony prejudiced the outcome of the verdict.” Badger v. State, 933 So. 2d 729 (Fla. 4th DCA 2006) (citing Nelson v. State, 875 So. 2d 579 (Fla. 2004)). Appellant alleges only the first name of one of the witnesses and no addresses or locations for any of the witnesses. He also does not specifically assert that each of them was available for trial.
The trial court’s decision below relied upon the state’s response to appellant’s motion which asserted that appellant’s claim, if sufficient, was refuted by the record. The state refers to appellant’s negative response during his trial to the trial court’s question concerning whether he would be calling any witnesses in his defense.
In Law v. State, 847 So. 2d 599 (Fla. 5th DCA 2003), Law filed a rule 3.850 motion alleging his counsel was ineffective for failing to interview or call two alibi witnesses to testify on his behalf and support his defense of misidentification. The trial court denied the motion. It noted that when Law was questioned by the court on his decision not to testify, “Law indicated that the court should let defense counsel do his job and that he felt counsel was representing him ‘in the best way he can.’ ” Id. at 600. The trial court concluded that Law could have complained about the witnesses at that time but did not. On appeal, the district court held:
We conclude that Law’s comments do not conclusively refute this ineffective assistance claim. First, the comments that the trial court pointed out pertained to Law’s decision not to testify rather than his right to call witnesses. In addition, Law’s statement indicating satisfaction, made after the state had rested, may have been made based on his belief that it was too late to call witnesses.
Id.
In the instant case, we conclude that appellant’s agreement that he would not be calling any witnesses does not conclusively refute an ineffective assistance claim for failure to investigate because he may have believed it was too late to call his witnesses.
Although the claim is insufficient, we nevertheless reverse the denial with prejudice, and remand so that the trial court can allow appellant to file a facially sufficient amended motion on his claim, if he can in good faith, within thirty (30) days of this court’s mandate. Spera v. State, 971 So. 2d 754 (Fla.2007); Reed v. State, 989 So. 2d 721 (Fla. 4th DCA 2008).
Reversed and Remanded.
TAYLOR, HAZOURI and MAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McINDOO v. State, 98 So. 3d 640 (Fla. 4th DCA 2012)…CA 2009) (defendant was bound by his answers to the court’s colloquy that he did not want to call any witnesses, defeating his claim that his counsel failed to investigate and call a witness known to the defendant prior to trial). Rollins v. State, 997 So. 2d 1288 (Fla. 4th DCA 2009), relied upon by appellant, is distinguishable. There, we held that the defendant’s answers to the trial court’s question as to whether he would be calling any witnesses did not conclusively refute the allegations in his postconvi…
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Richard v. Fletcher, 177 So. 3d 1010 (Fla. 5th DCA 2015)…at defense counsel told him that the two witness’s testimony would have been “irrelevant.” Compare Law v. State, 847 So. 2d 599, 600-01 (Fla. 5th DCA 2003) with McIndoo v. State, 98 So. 3d 640, 641-642 (Fla. 4th DCA 2012). See also Rollins v. State, 997 So. 2d 1288, 1289 (Fla. 4th DCA 2009). Additionally, the trial court erred in concluding that there was no reasonable probability that the testimony of Patzkie and Manning would have changed the outcome of the trial based on the conclusion that “the victim was…
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Newcomer v. State (Fla. 5th DCA 2023)…vestigate or call witnesses, a defendant must allege “the identity of the witnesses, their testimony, that the witnesses were available to testify at the trial, and how this lack of testimony prejudiced the outcome of the verdict.” Rollins v. State, 997 So. 2d 1288, 1288–89 (Fla. 4th DCA 2009); Bennett v. State, 838 So. 2d 633, 634 (Fla. 1st DCA 2003). Counsel cannot be ineffective for failing to call witnesses he knew nothing about. See Prieto v. State, 708 So. 2d 647 (Fla. 2d DCA 1998). The trial court summa…
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Nelson v. State, 875 So. 2d 579 (Fla. 2004)
- Jerail Leron LAW v. State, 847 So. 2d 599 (Fla. 5th DCA 2003)
- Badger v. State, 933 So. 2d 729 (Fla. 4th DCA 2006)
- Reed v. State, 989 So. 2d 721 (Fla. 4th DCA 2008)
- Pomaski v. State, 989 So. 2d 721 (Fla. 4th DCA 2008)