JAMES PERRY ABLES, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a motion to vacate alleging ineffective assistance of counsel is facially insufficient if it fails to proffer the prospective testimony of uncalled witnesses by affidavit.
Appellant filed a motion to vacate alleging ineffective assistance of counsel, specifically that his attorney failed to subpoena witnesses. The trial …
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COBB, Judge.
Appellant Abies filed a motion to vacate pursuant to Florida Rule of Criminal Procedure 3.850, in which he alleged ineffective assistance of counsel. The trial court reviewed the record and then denied the motion without an evidentiary hearing. Abies has appealed that denial of his motion.
Since the motion was facially insufficient, we find the appeal to be without merit. However, in light of the number of these motions that are being filed alleging ineffective assistance of counsel, we believe that one of the grounds raised by Abies in his motion should be discussed.
In his motion to vacate, Abies alleged that:
I advised my Attorney of a number of witnesses that had testimony for the de-fence. Mr. Chester did not talk nor Subpoena any of my said witnesses.
A similar allegation was raised in the case of Clements v. State, 340 So. 2d 1182 (Fla. 4th DCA 1976). In Clements, the court stated that the motion to vacate was inadequate because:
There was no proffer of the prospective testimony by affidavit nor even any factual allegation as to what this exculpatory testimony might be. There is nothing in the motion to show admissible evidence would be forthcoming from the witnesses. Hence, there is no showing before this Court of a causal relationship between the failure to obtain the testimony at trial of these witnesses (the alleged incompetence of counsel) and the defendant’s conviction.
The trial court should not have to speculate as to the nature of this testimony when it is asked to grant an evidentiary hearing.
340 So. 2d at 1183.
AFFIRMED.
DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.
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Ferby v. State, 404 So. 2d 407 (Fla. 5th DCA 1981)…er ground for complaint or relief. See, e.g., Fuller v. Wainwright, 238 So. 2d 65 (Fla. 1970) (failure to call witnesses on behalf of defense is within discretion of trial counsel); Brown v. State, 404 So. 2d 157 (Fla. 5th DCA 1981); Ables v. State, 404 So. 2d 137 (Fla. 5th DCA 1981) (failure to talk to or subpoena alleged witnesses was facially insufficient where motion did not allege what prospective testimony would have been); Mauldin v. State, 382 So. 2d 844 (Fla. 1st DCA 1980) (failure to have appellant…
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McNEAL v. State, 409 So. 2d 528 (Fla. 5th DCA 1982)…her tactical or strategic, on an inquiry as to effectiveness of counsel. See Baker v. State, 404 So. 2d 1151 (Fla. 5th DCA 1981); Ferby v. State, 404 So. 2d 407 (Fla. 5th DCA 1981); Brown v. State, 404 So. 2d 157 (Fla. 5th DCA 1981); Ables v. State, 404 So. 2d 137 (Fla. 5th DCA 1981). When faced with the duty of attempting to avoid the consequences of overwhelming evidence of the commission of an atrocious crime, such as a deliberate, considered killing without the remotest legal justification or excuse, it…
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- Clements v. State, 340 So. 2d 1182 (Fla. 4th DCA 1976)