JAMES LEROY HOPKINS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Defense counsel's elicitation of testimony about prior arrests, based on a mistaken belief about prosecutorial rights, constitutes ineffective assistance requiring an evidentiary hearing under Rule 3.850.
A defendant is entitled to an evidentiary hearing on an ineffective assistance of counsel claim when counsel elicited testimony about prior arrests based on an erroneous assumption about the State's cross-examination rights.
[1] Defense counsel's elicitation of testimony regarding prior arrests, based on mistaken belief about prosecutorial cross-examination rights, entitles defendant to evidentia…
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Join FLexlaw to unlock all legal intelligence“unless the motion and the files and record in the case conclusively show that he is not entitled to relief, the petitioner is entitled to an evidentiary hearing on his motion”
Standard for ineffective assistance claims under Fla.R.Crim.P. 3.850
Defense counsel questioned the defendant about previous arrests, believing the State would do so if counsel did not; however, the State was limited to…
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PER CURIAM.
When a petitioner alleges ineffective assistance of counsel, unless the motion and the files and record in the case conclusively show that he is not entitled to relief, the petitioner is entitled to an evidentiary hearing on his motion. Fla.R.Crim.P. 3.850. Meeks v. State, 382 So. 2d 673 (Fla.1980); Cash v. State, 412 So. 2d 420 (Fla. 3d DCA 1982).
Both the Rule 3.850 motion and the record in this case demonstrate that defense counsel elicited testimony from the defendant concerning previous arrests, and that counsel did so on the assumption that if he did not, the State would. However, the State was empowered to ask only whether the defendant had ever been convicted of a crime, Whitehead v. State, 279 So. 2d 99, 100 (Fla. 2d DCA 1973), and not whether he had any prior arrests. Michaelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 222, 93 L.Ed. 168, 177 (1948); Jordan v. State, 107 Fla. 333, 335, 144 So. 669, 670 (1932); Harmon v. State, 394 So. 2d 121, 124-25 (Fla. 1st DCA 1980). Consequently, the defendant is entitled to an evidentiary hearing aimed at determining whether his attorney provided reasonably effective assistance under the standards set forth in Knight v. State, 394 So. 2d 997 (Fla.1981).
Reversed and remanded for an evidentiary hearing.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Henry v. State, 948 So. 2d 609 (Fla. 2006)…prior record to asking if he or she has ever been convicted of a felony or a crime involving dishonesty. See § 90.610(1), Fla. Stat. (1991). If the defendant acknowledges such a record, there can be no inquiry into the details. See Hopkins v. State, 413 So. 2d 443 (Fla. 3d DCA 1982) (“[T]he State was empowered to ask only whether the defendant had ever been convicted of a crime ....”) (citing Whitehead v. State, 279 So. 2d 99, 100 (Fla. 2d DCA 1973)). Yet Henry’s counsel ignored and abandoned the protections…
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Wright v. State, 446 So. 2d 208 (Fla. 3d DCA 1984)…We conclude that defense counsel’s action in placing this evidence before the jury established her ineffectiveness and entitles Wright to relief under the controlling authority of Knight v. State, 394 So. 2d [*210] 997 (Fla.1981). Hopkins v. State, 413 So. 2d 443 (Fla. 3d DCA 1983). It is first plain that the specifically identified “overt act” of introducing the plainly harmful testimony was “a serious and substantial deficiency measurably below that of competent counsel,” Knight, 394 So. 2d at 1001, who ar…
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Chapman v. State, 442 So. 2d 1024 (Fla. 5th DCA 1983)…ion or proceeding, raise Chapman’s double jeopardy defenses. Knowledge of the rules of evidence and basic procedure is required in order to provide effective assistance of counsel. Torna v. Wainwright, 649 F. 2d 290 (5th Cir.1981); Hopkins v. State, 413 So. 2d 443 (Fla. 3d DCA 1982); see also Howard v. State, 417 So. 2d 1152 (Fla. 1st DCA 1982). Finally, this deficiency clearly resulted in prejudice to Chapman, since he was convicted of the higher offense which would have been barred had the defense been prop…
Authorities Cited
- Michelson v. United States, 335 U.S. 469 (U.S. 1948)
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- Meeks v. State, 382 So. 2d 673 (Fla. 1980)
- Jordan v. State, 107 Fla. 333 (Fla. 1932)
- Blackman v. State, 279 So. 2d 99 (Fla. 3d DCA 1973)
- Cash v. State, 412 So. 2d 420 (Fla. 3d DCA 1982)
- Proctor v. Paul Kramer, M.D., 394 So. 2d 121 (Fla. 4th DCA 1980)
- Harmon v. State, 394 So. 2d 121 (Fla. 1st DCA 1980)