ELLA NORA MARTIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1986-12-23
No. BM-32
SMITH and ZEHMER, JJ., concur.
501 So. 2d 1313 Florida District Court of Appeal, First District (1986) Positive Treatment
Cited by 14 cases

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Synopsis

Ella Nora Martin appeals the denial of her post-conviction motion for ineffective assistance of counsel, claiming her trial attorney Pafford failed to object to prosecutorial comments about her silence and failed to investigate various defense theories. The appellate court reverses and remands for a new trial, finding that Pafford's failure to object to the comments constituted ineffective assistance of counsel.


Holding

The court held that Martin properly raised ineffective assistance claims against Pafford in post-conviction relief since only Wolbert's ineffectiveness was addressed on direct appeal. The court found that Pafford's failure to object to prosecutorial comments about Martin's silence constituted ineffective assistance of counsel because the comments were not harmless error and formed the main thrust of the prosecution's closing argument.


Headnotes

[1] An issue is not precluded from post-conviction relief if it was not raised on direct appeal.

[2] Allegations of ineffective assistance of counsel not presented to the trial court in a motion for new trial are not precluded from being raised in a subsequent motion for…

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Key Quotes

“It is true that an issue may not be raised in a motion for post-conviction relief where it either was raised on direct appeal or should have been. Adams v. State, 484 So.2d 1216 (Fla.1986). However, a thorough review of the record on the direct appeal leads us to the conclusion that only Attorney Wolbert's ineffectiveness was raised at that time.”

Establishes the distinction between Wolbert's ineffectiveness (previously raised on appeal) and Pafford's ineffectiveness (properly raised for the first time in post-conviction motion).

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Facts & Procedural History

Martin was arrested in November 1980 for first-degree murder of her husband. She was initially represented by Jesse Wolbert, who was later replaced by…

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Opinion of the Court
SHIVERS, Judge.

SHIVERS, Judge.

The appellant in this case, Ella Nora Martin, appeals the trial court’s denial after an evidentiary hearing of her motion for post-conviction relief. We reverse the trial court’s ruling and remand for a new trial.

The record on appeal indicates that Martin was arrested on November 22, 1980, and later charged by indictment with the first-degree murder of her husband, Jimmy Martin. She was initially represented by a private attorney, Jesse J. Wolbert, Jr.

However, on January 14, 1981, appellant retained a second attorney, John Pafford, and in mid-February of 1981 Wolbert withdrew as counsel and Pafford filed a notice of appearance.

On February 27, 1981, after Wolbert’s withdrawal, Pafford filed a lengthy motion for continuance in which he alleged that Wolbert had rendered ineffective assistance of counsel during his representation of Martin from November 22, 1980 to January 14, 1981, and that Wol-bert’s delay in filing a demand for discovery in the case caused Pafford to have an insufficient amount of time in which to investigate the case, depose certain witnesses, prepare a defense, and determine Martin’s competence to stand trial. Paf-ford’s motion also alleged a conflict of interest in that Wolbert had represented the deceased husband in his divorce proceedings against the appellant, and had represented a Bradford County bank which had initiated foreclosure proceedings against some of appellant’s property.

The trial court denied Pafford’s motion for continuance on March 2, 1981. On March 16, Pafford filed a petition for writ of certiorari and a petition for writ of prohibition with this court. Both petitions were denied for failure to state a preliminary basis for relief. After a three day jury trial on March 23 through March 25, 1981, appellant was convicted of first-degree murder and was sentenced to life imprisonment. Pafford again raised the issue of the trial court’s denial of the motion for continuance and the issue of Attorney Wol-bert’s ineffectiveness, in both a motion for new trial filed on April 21, 1981, and in a direct appeal to this court. The motion for new trial was denied by the trial court and the direct appeal was per curiam affirmed.

In July of 1985 appellant (represented by different counsel) filed the instant motion for post-conviction relief, alleging ineffective assistance of counsel as to Attorney Pafford. Specifically, the motion alleged that Pafford erred in (1) failing to object to certain comments made during trial on Martin’s right to remain silent; (2) failing to fully investigate and establish at trial both the victim’s history of alcoholism, drug abuse, and violence toward appellant and the appellant’s reputation and character for nonviolence; (3) failing to research and consider introduction of expert testimony regarding “battered woman syndrome”; and (4) failing to investigate and give timely notice of appellant’s intention to rely upon the insanity defense. At the eviden- tiary hearing on the motion for postrconviction relief, the trial court denied the motion and stated its belief that the question of Pafford’s competency as an attorney “as it relates to his state of preparation at the time of continuance ... was res judicata when the First District Court of Appeal rendered its affirmance in this case.”

In response to Martin’s first argument on appeal, we agree that the trial court erred in ruling that the issue of ineffective assistance of counsel was res judi-cata in this case. It is true that an issue may not be raised in a motion for post-conviction relief where it either was raised on direct appeal or should have been. Adams v. State, 484 So. 2d 1216 (Fla.1986).

However, a thorough review of the record on the direct appeal leads us to the conclusion that only Attorney Wolbert’s ineffectiveness was raised at that time.

Thus, appellant is not precluded from raising the issue of Pafford’s ineffectiveness^ a 3.850 motion on the ground that that issue was raised on direct appeal.

Second, although this court has held that where,an allegation of. ineffective assistance of counsel has been sufficiently raised in a motion for new trial, the denial of the motion is reviewable, Wright v. State, 428 So. 2d 746 (Fla. 1st DCA 1983), the specific allegations of ineffectiveness raised in the instant motion for post-conviction relief were not raised in the motion for new trial. Since those allegations were therefore not presented to the trial court, they were not preserved for direct appeal. See Wright, supra. It also follows, then, that appellant was not precluded from raising those specific issues of ineffectiveness in her motion for post-conviction relief on the ground that the issue could or should have been raised on direct appeal.

Having concluded that appellant’s allegations of Pafford’s ineffectiveness were properly presented to the trial court via her motion for post-conviction relief, we also find that the evidence was sufficient to support a finding of ineffectiveness. As to appellant’s first allegation of ineffectiveness, the trial transcript contains numerous comments by both State witnesses and by the prosecutor in closing argument directed to appellant’s silence and her failure to fully explain her actions on the day of her husband’s death. Due to the number of these comments and to the fact that the main thrust of the State’s closing argument was the appellant’s failure to explain the shooting by establishing that she had acted in self-defense, we find that the comments were not harmless error and would have formed the basis for either a mistrial or reversal had they been objected to by trial counsel. State v. Marshall, 476 So. 2d 150 (Fla.1985).

Assuming as we have that the comments were not harmless error, and finding the appellant to have overcome the presumption that Pafford’s failure to object was based on sound trial strategy, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. .2052 at 2066, 80 L.Ed.2d 674 (1984), we find that the evidence supports a finding of ineffective assistance of counsel for failure to object.

As we find Pafford to have rendered ineffective assistance of counsel on that ground, it is unnecessary for us to address the remaining grounds for ineffectiveness raised by the appellant. For the same reason, it is also unnecessary for us to address the third issue raised on appeal, the trial court’s refusal to allow appellant’s presence at the evidentiary hearing on her motion for post-conviction relief.

Accordingly, the trial court’s order denying appellant’s motion for post-conviction relief is reversed, and this cause is remanded for new trial.

SMITH and ZEHMER, JJ., concur.


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Citator

Cited By

  • Jackson v. State, 711 So. 2d 1371 (Fla. 4th DCA 1998)
    …ailure may be sufficient to constitute the ineffective assistance of counsel pursuant to a rule 3.850 motion. See Davis v. State, 648 So. 2d 1249, 1250 (Fla. 4th DCA 1995); Overton v. State, 531 So. 2d 1382,1387 (Fla. 1st DCA 1988); Martin v. State, 501 So. 2d 1313 (Fla. 1st DCA 1986). As to the foregoing grounds for relief, the record before this court does not conclusively demonstrate that Appellant is entitled to no relief. Therefore, the order summarily denying the motion is reversed and the cause remande…
  • Tidwell v. State, 844 So. 2d 701 (Fla. 1st DCA 2003)
    …hat the requirements of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), are met. See, e.g., Jackson v. State, 711 So. 2d 1371 (Fla. 4th DCA 1998); Overton v. State, 531 So. 2d 1382 (Fla. 1st DCA 1988); Martin v. State, 501 So. 2d 1313 (Fla. 1st DCA 1986). Appellant’s allegations are facially sufficient. The trial court’s summary denial was based on the fact that the issue of improper removal of male prospective jurors had been raised on direct appeal to this court, and we affirme…
  • Rhue v. State, 603 So. 2d 613 (Fla. 2d DCA 1992)
    …r of proof. Cf. United States v. Binder, 769 F. 2d 595 (9th Cir.1985) (videotaped testimony). Once more, no objection was lodged. The failure to preserve issues for appellate review can constitute ineffective assistance of counsel. Martin v. State, 501 So. 2d 1313 (Fla. 1st DCA 1986); Crenshaw v. State, 490 So. 2d 1054 (Fla. 1st DCA 1986). Of course, the so-called “Strickland test” would apply here, as with any other claim of ineffective assistance.3 For appellant to prevail, he would have to demonstrate in s…

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