ALLEN L. PENOYER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Allen Penoyer appeals the summary denial of his post-conviction motion for ineffective assistance of counsel. The appellate court reverses, finding that Penoyer stated a prima facie case that his defense counsel's failure to locate and utilize a witness (the victim's wife) who could have testified to events relevant to Penoyer's defense was deficient representation requiring a hearing.
The court reversed the summary denial and remanded for either a hearing on the ineffective assistance claim or for the trial court to attach sufficient record documentation refuting Penoyer's factual assertions. The motion contained a prima facie showing that the evidence, if presented, might have affected the outcome of the case.
[1] A motion for post-conviction relief alleging ineffective assistance of counsel based on the failure to call a witness may establish a prima facie case if the witness's te…
[2] A trial court must either hold a hearing on a claim of ineffective assistance of counsel or attach sufficient portions of the record to refute the factual assertions made…
Previewing 2 of 5 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“Although Penoyer's motion is not drafted with the precision one would associate with a well-trained attorney, we believe it contained a prima facie showing that the evidence, if presented at trial, might have affected the outcome of the case.”
Establishes that inadequate pleading drafting does not defeat a prima facie showing of ineffective assistance if the substance demonstrates a viable claim
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePenoyer was convicted of second degree murder in the death of Larry Allender and of assaulting Don and Carol Monteith with intent to commit murder. In…
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FRANK, Judge.
Allen Penoyer appeals from an order summarily denying his motion for post-conviction relief. We reverse.
Penoyer was convicted of second degree murder as a result of the death of one Larry Allender, and of assaulting Don Monteith and Carol Monteith with intent to commit murder. In his Rule 3.850 motion, Penoyer alleged that his defense counsel was ineffective because of his failure to locate, interview, and utilize a witness named Kathy Allender, decedent’s wife. Penover asserted in his motion that Kathy Allender would have testified that her husband planned to rob and kill Penoyer. The court below solicited a response to Penover’s motion from the state. The state contended before the trial court that Penoyer did not claim in his motion that Allender was killed in self-defense, and thus Ms. Allender’s testimony, as described in the motion, was not relevant. We disagree. Although Penoyer’s motion is not drafted with the precision one would associate with a well-trained attorney, we believe it contained a prima facie showing that the evidence, if presented at trial, might have affected the outcome of the case. Crusoe v. State, 183 So. 2d 600 (Fla. 2d DCA 1966); Williams v. State, 163 So. 2d 767 (Fla. 2d DCA 1964). Our review of the motion leads to the conclusion that Penoyer believes the death of Allender a justifiable homicide, and hence he was armed with a defense not developed at trial.
The state further urged the view that the record in its present form overcame whatever effect the Ms. Allender evidence might have afforded Penoyer’s defense. We, however, cannot make that determination from the record before us. If the trial court agreed with the state’s position, it failed to attach documentation to its order to support such a conclusion.
The remaining grounds set forth in Pen-over’s motion are without merit, and the trial court properly denied relief on those grounds.
This case is remanded to the trial court with directions either to afford Penoyer a hearing on his claim of ineffective assistance of counsel or to attach sufficient portions of the record to refute Penoyer’s factual assertions. If a hearing is held, Pe-noyer will, of course, have the burden of substantiating his allegations. Arango v. State, 437 So. 2d 1099 (Fla.1983). He must demonstrate that Ms. Allender’s testimony, if adduced at trial, would have been relevant, material, and would have satisfied the two elements deemed essential in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Obviously, Penoyer must also establish that his counsel knew or should have known of the existence of the witness and that he had no valid reason for failing to offer her testimony at trial. If the trial court again summarily denies the motion, Penoyer must file a notice of appeal within the time prescribed by Rule 9.110(b) of the Florida Rules of Appellate Procedure to obtain further review.
Reversed.
GRIMES, A.G.J., and HALL, J., concur.
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Citator
Cited By
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Penoyer v. State, 945 So. 2d 586 (Fla. 2d DCA 2006)…or rehearing. . See Penoyer v. State, 848 So. 2d 321 (Fla. 2d DCA 2003); Penoyer v. State, 696 So. 2d 361 (Fla. 2d DCA 1997); Penoyer v. State, 613 So. 2d 28 (Fla. 2d DCA 1992); Penoyer v. State, 494 So. 2d 236 (Fla. 2d DCA 1986); Penoyer v. State, 485 So. 2d 7 (Fla. 2d DCA 1986); see also Penoyer v. Crosby, 845 So. 2d 198 (Fla. 2d DCA 2003); Penoyer v. Circuit Court, Sixth Judicial Circuit, 605 So. 2d 80 (Fla. 2d DCA 1992); Penoyer v. Circuit Court for Sixth Judicial Circuit, Pinellas County, 491 So. 2d 5…
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Penoyer v. State, 494 So. 2d 236 (Fla. 2d DCA 1986)…PER CURIAM. Allen Penoyer appeals from an order summarily denying his motion for post-conviction relief. In Penoyer v. State, 485 So. 2d 7 (Fla.2d DCA 1986), we remanded this case with directions either to grant Penoyer a hearing on his allegation of ineffective assistance of counsel, or to attach sufficient portions of the record to demonstrate that Penoyer was not entitled to relief.…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Crusoe v. State, 183 So. 2d 600 (Fla. 2d DCA 1966)
- Arango v. State, 437 So. 2d 1099 (Fla. 1983)
- Cleveland Williams v. State, 163 So. 2d 767 (Fla. 2d DCA 1964)
- PAN Am. Life Ins. Co. v. Botana, 163 So. 2d 767 (Fla. 3d DCA 1964)