RICHARD JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Richard Johnson appealed the denial of his Rule 3.850 motion for post-conviction relief, raising claims of ineffective assistance of counsel, prosecutorial misconduct, and a Miranda violation. The Florida District Court of Appeal affirmed the trial court's denial, finding that Johnson's ineffective assistance claim was facially deficient and his remaining claims were procedurally barred because they should have been raised on direct appeal.
The court affirmed the trial court's denial of Johnson's Rule 3.850 motion. The ineffective assistance claim was properly denied as facially deficient because Johnson failed to allege with specificity how he was prejudiced by counsel's actions and what testimony he would have provided. The remaining claims were properly denied as procedurally barred because Johnson had access to the trial transcript through due diligence and therefore should have raised these issues on direct appeal.
[1] Allegations of ineffective assistance of counsel based on trial counsel's decisions regarding witness examination and calling the defendant to testify are generally consi…
[2] A defendant alleging ineffective assistance of counsel must specifically allege how they were prejudiced by the counsel's actions.
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“these allegations are properly regarded as matters of trial strategy. See Knight v. State, 394 So.2d 997 (Fla.1981); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)”
Establishes that counsel's failure to cross-examine a witness and failure to call the defendant as a witness are trial strategy decisions subject to the Strickland framework for ineffective assistance claims
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJohnson was convicted of a crime and filed a Rule 3.850 motion alleging three grounds for relief: (1) ineffective assistance because his trial counsel…
The full statement of facts, procedural history, and disposition for this case are member content.
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WENTWORTH, Judge.
Appellant in this case has appealed the denial of his Rule 3.850 motion. He alleged in his motion 1) ineffective assistance of counsel on grounds that the trial counsel failed to cross examine the state’s expert witness and failed to call appellant as a witness, 2) “default in performance of duty by ministerial officer” on grounds that the prosecutor had presented evidence known by him to be false, and 3) “conviction obtained by a violation of privilege against self incrimination” on grounds that appellant’s pre-Miranda statement, taken while he was being treated for a gun shot wound and after having been administered a narcotic, was improperly used against him at trial.
As to point one, alleging ineffective assistance of counsel on grounds that trial counsel failed to object to testimony by an expert witness that was in direct contradiction with the witness’ deposition testimony, and failed to call appellant as a witness, these allegations are properly regarded as matters of trial strategy. See Knight v. State, 394 So. 2d 997 (Fla.1981); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellant further fails to allege with specificity how he was prejudiced by defense counsel’s actions, what discrepancy existed between the trial and deposition testimony of the expert witness, and what testimony he would have provided if called. The trial court’s characterization of this ground as facially deficient is therefore correct.
Grounds two and three, supra, would properly have been raised as issues on direct appeal. Appellant alleged that he could not have raised these issues in his prior appeal because a trial transcript was unavailable to him until September 1983, after the filing of his direct appeal. Our examination of the file in the prior appeal in this court indicates that a trial transcript which included the testimony of R.T. Lee, the individual who took the pre-Miranda statement from appellant, was part of the record in that appeal. We conclude that appellant would have had access to the trial transcript through the exercise of due diligence, and his assertion as to why the above allegations were not presented on appeal accordingly appears to be insufficient. The trial court’s denial of the motion on grounds that the asserted grounds were procedurally barred was therefore proper. AFFIRMED.
SHIVERS and MINER, JJ., concur.
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Ruel Lanier v. State, 709 So. 2d 112 (Fla. 3d DCA 1998)…Breedlove v. State, 692 So. 2d 874 (Fla.1997); Rose v. State, 675 So. 2d 567 (Fla.1996); Porter v. State, 478 So. 2d 33 (Fla.1985); Magill v. State, 457 So. 2d 1367 (Fla.1984); Wilkins v. State, 685 So. 2d 957 (Fla. 4th DCA 1996); Johnson v. State, 541 So. 2d 661 (Fla. 1st DCA 1989). Even if we were to assume, arguendo, that the dissenting opinion is accurate in its position that the performance of trial counsel in this matter was deficient, that determination only satisfies half of the test to be applied b…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Knight v. State, 394 So. 2d 997 (Fla. 1981)