BILLY E. SWAIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Billy Swain appealed a denial of his Rule 3.850 motion for post-trial relief claiming ineffective assistance of counsel. The court affirmed the denial, finding the motion facially insufficient because it failed to identify omitted witnesses or explain how their absence constituted deficient performance rather than trial strategy.
The court held that Swain's motion was facially insufficient and properly denied. While failure to call witnesses can constitute ineffective assistance in some instances, such allegations must include the witnesses' names, the substance of their testimony, and how the omission prejudiced the outcome of the trial.
[1] A motion for post-trial relief based on ineffective assistance of counsel is facially insufficient if it fails to identify the names of omitted witnesses and explain why…
[2] Allegations of ineffective assistance of counsel must be sufficiently detailed to apprise the court of the names of witnesses, the substance of their testimony, and how t…
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Join FLexlaw to unlock all legal intelligence“such allegations must be in sufficient detail to apprise the court of the names of the witnesses, substance of their testimony, and how the omission prejudiced the outcome of the trial”
Establishes the pleading requirements for ineffective assistance claims based on witness omissions
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Join FLexlaw to unlock all legal intelligenceSwain filed a Rule 3.850 motion alleging his trial counsel failed to call witnesses whose testimony would have supported his defense's main witness. T…
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PER CURIAM.
Appellant’s rule 3.850 motion for post-trial relief based on allegations of ineffective assistance of counsel is facially insufficient and was therefore properly denied by the lower court. Although complaining that appellant’s trial counsel “failed to bring forth witnesses for the defense whose testimony would support testimony of defenses [sic] main witness,” the motion does not identify the names of the omitted witnesses or why counsel’s failure to call such witnesses could not be deemed a matter of trial strategy rather than professional neglect to call essential witnesses to support appellant’s defenses. While we recognize that in some instances the failure to call witnesses to support a defense may be sufficient to establish a violation of the constitutional right to effective assistance of counsel, Martin v. Maggio, 711 F. 2d 1273 (5th Cir.1983), cert. denied, 469 U.S. 1028, 105 S.Ct. 447, 83 L.Ed.2d 373 (1984); Garza v. Wolff, 528 F. 2d 208 (8th Cir.1975); Gomez v. Beto, 462 F. 2d 596 (5th Cir.1972), such allegations must be in sufficient detail to apprise the court of the names of the witnesses, substance of their testimony, and how the omission prejudiced the outcome of the trial. See Keith v. State, 492 So. 2d 444 (Fla. 1st DCA 1986).
In the same manner, appellant’s other allegations of ineffective assistance of counsel fall far short of facially indicating that the specific omission or act complained of was a substantial and serious deficiency falling measurably below the standard of competent counsel, and that such acts or omissions were substantial enough, when considered under the circumstances of the case, to prejudice defendant to an extent likely to have affected the outcome of the court proceeding. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Johnson v. Wainwright, 463 So. 2d 207 (Fla.1985).
AFFIRMED.
SMITH, SHIVERS and ZEHMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Highsmith v. State, 617 So. 2d 825 (Fla. 1st DCA 1993)…witnesses’ testimony; and (3) an explanation as to how the omission of this evidence prejudiced the outcome of the trial. See Sorgman v. State, 549 So. 2d 686 (Fla. 1st DCA 1989); Robinson v. State, 516 So. 2d 20 (Fla. 1st DCA 1987); Swain v. State, 502 So. 2d 494 (Fla. 1st DCA 1987); Majewski, 487 So. 2d at 33. Our research has disclosed no authority for the state’s assertion that, not only must the defendant identify the witness by name and explain the nature of the testimony he or she would give if called…
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Sorgman v. State, 549 So. 2d 686 (Fla. 1st DCA 1989)…or overt act upon which his claim is based and such allegations must be in sufficient detail to apprise the court of the names of the witnesses, substance of their testimony, and how the omission prejudiced the outcome of the trial. Swain v. State, 502 So. 2d 494 (Fla. 1st DCA 1987). Among the specific acts or omissions of counsel which appellant asserts to prove counsel’s ineffectiveness are counsel’s failure to interview and call witnesses appellant told counsel about who may have been able to cast doubt o…
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Beard v. State, 548 So. 2d 675 (Fla. 5th DCA 1989)…inion that there was not a sufficient allegation of inadequacy of counsel to require the court to grant relief. A bare allegation that a witness was not interviewed or called at trial is insufficient to require further court inquiry. Swain v. State, 502 So. 2d 494 (Fla. 1st DCA 1987). Additionally, whether to call a witness or not is usually a tactical decision made by a lawyer and should not [*676] be second-guessed by a court. Magill v. State, 457 So. 2d 1367 (Fla.1984). Appellant says the following was wh…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Johnson v. Louie L. Wainwright, 463 So. 2d 207 (Fla. 1985)
- Martin v. Maggio, 711 F.2d 1273 (5th Cir. 1983)
- Clark v. S. Or. Citizens Against Toxic Sprays, Inc., 469 U.S. 1028 (U.S. 1984)
- Gosberry v. Illinois, 469 U.S. 1028 (U.S. 1984)
- Gomez v. Beto, 462 F.2d 596 (5th Cir. 1972)
- Lugene Keith v. State, 492 So. 2d 444 (Fla. 1st DCA 1986)
- Garza v. Warden Charles L. Wolff, 528 F.2d 208 (8th Cir. 1975)