ALEXANDER ROBINSON, III, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the motion for post-conviction relief was facially insufficient because it failed to allege specific facts regarding the alibi witnesses.
Robinson appealed an order denying his motion for post-conviction relief, which alleged involuntary confession and ineffective assistance of counsel f…
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NIMMONS, Judge.
Robinson appeals from an order denying his Fla.R.Crim.P. 3.850 motion. His motion asserted two grounds: (1) his confession, which was introduced at his trial, was involuntarily given; and (2) his attorney was ineffective by failing to call two alibi witnesses.
The first ground is unavailing because such could have been raised by direct appeal from his conviction.
With respect to the second ground, the trial judge attached to his order an affidavit of Robinson’s trial counsel upon which affidavit the court relied in denying the motion. This was error because the affidavit was not part of the files and records in the case. See McCorkle v. State, 419 So. 2d 373 (Fla. 1st DCA 1982).
However, the trial court’s order of denial is sustainable on another basis — facial insufficiency of the motion. Ground two of Robinson’s motion simply alleged that his lawyer failed to present two alibi witnesses after he asked that the lawyer do so. There is no hint in the motion as to any facts such as the identity of such witnesses, what they would testify to if called, or their availability. While the failure to call witnesses may constitute ineffective assistance of counsel, see e.g. Halpin v. State, 428 So. 2d 703 (Fla. 2nd DCA 1983), a 3.850 movant must allege more than the bare bones statement that his lawyer failed to call two witnesses.
AFFIRMED.
MILLS and ERVIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Alwin J. Jacobs v. State, 880 So. 2d 548 (Fla. 2004)…witnesses or their addresses,” because he did factually describe how the witnesses would have supported his alibi. Id. at 989. Hence, the Fifth District concluded that a facially sufficient claim was alleged. On the other hand, in Robinson v. State, 516 So. 2d 20 (Fla. 1st DCA 1987), the First District held that an IAC claim regarding the failure to call alibi witnesses was facially insufficient when the defendant fails to support it with “facts such as the identity of such witnesses, what they would testify…
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Highsmith v. State, 617 So. 2d 825 (Fla. 1st DCA 1993)…he prospective witnesses; (2) the substance of the 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 na…1 / 2
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Shaffner v. State, 562 So. 2d 430 (Fla. 1st DCA 1990)…36 (Fla. 4th DCA 1980); Fla.R.Crim.P. 3.850. Although the affidavit filed in the instant case contained information which indicated that appellant was not entitled to relief, it was not part of the file and record in the case. See Robinson v. State, 516 So. 2d 20 (Fla. 1st DCA 1987); McCorkle v. State, 419 So. 2d 373 (Fla. 1st DCA 1982); Youngblood v. State, 261 So. 2d 867 (Fla. 2nd DCA 1972). Nevertheless, the order denying the motion is affirmable for another reason. The motion was facially insufficient.…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Halpin v. State, 428 So. 2d 703 (Fla. 2d DCA 1983)
- McCORKLE v. State, 419 So. 2d 373 (Fla. 1st DCA 1982)