STATE OF FLORIDA, APPELLANT,
v.
JEROME ALLEN GIBSON, APPELLEE
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Florida appeals a trial court's order granting Gibson's motion for a new trial based on ineffective assistance of counsel for a lewd and lascivious act conviction. The appellate court quashes the order because although the trial court found counsel's performance deficient, it also expressly found no prejudice to the defendant, which is required under the two-prong Strickland test.
The court held that a defendant must establish both deficient performance by counsel and actual prejudice under the Strickland standard. Because the trial court found the outcome probably was not affected by counsel's deficiencies, the order granting a new trial was flawed and must be quashed.
[1] Claims of ineffective assistance of appellate counsel are judged by the same standard as claims of ineffective assistance of trial counsel, requiring proof of deficient p…
[2] To establish prejudice from deficient performance, a defendant must show a reasonable probability that, but for counsel's errors, the result of the proceeding would have…
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“the benchmark for judging any claim of ineffectiveness of counsel must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial could not be relied on as having produced a just result”
Establishes the Strickland standard that Florida courts apply to ineffective assistance of counsel claims
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Join FLexlaw to unlock all legal intelligenceGibson was convicted of lewd and lascivious act on a child under 16, a second-degree felony. His conviction was previously affirmed on direct appeal. …
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W. SHARP, Judge.
The state appeals from the trial court’s order which granted Gibson’s 3.850 motion to set aside his judgment and sentence for a lewd and lascivious act on a child under the age of 16,1 a second degree felony. This court previously affirmed his conviction and sentence on appeal. Gibson v. State, 533 So. 2d 338 (Fla. 5th DCA 1988). We find the trial court’s order, which granted Gibson a new trial because of incompetency of trial counsel, to be flawed because it expressly found no prejudice to Gibson. Accordingly, we quash the order. Following a hearing on the issue of incompetency of trial counsel, the trial judge found that two specific omissions occurred which were so below expected standards as to “undermine confidence in the outcome of the trial.” They were defense counsel’s inadequate discovery and his failure to cross-examine (and possibly impeach with prior felony convictions) a key state witness. However, the trial judge also found that the omissions of trial counsel did not create “a probability of different results.”
A review of the record supports this conclusion. There was strong and abundant evidence to support Gibson’s conviction. The witness whom defense counsel failed to cross-examine was not essential, nor was she the sole source of proof of any essential facts. Her testimony could have been omitted altogether. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court held that the benchmark for judging any claim of ineffectiveness of counsel must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial could not be relied on as having produced a just result. Strickland was adopted by the Florida Supreme Court in Downs v. State, 453 So. 2d 1102 (Fla.1984) and State v. Bucherie, 468 So. 2d 229 (Fla.1985). In both cases, the court held that a defendant must establish not only deficient performance of trial counsel, but also an affirmative showing of prejudice. The court held in Bucherie:
Even if a defendant shows that particular errors of counsel were unreasonable, the defendant must show that they actually had an adverse effect on the defense.
468 So. 2d at 231.
In this case, as in Bucherie, the trial court granted the defendant a new trial because incompetency of counsel had been established. However, there was no finding that the deficient conduct likely or probably affected-the outcome of the proceedings; or that the outcome probably would have been different had trial counsel performed otherwise. Because the trial court found the outcome probably was not affected by the deficiencies of trial counsel in this case, a determination supported by the record, we quash the order vacating Gibson’s judgment and sentence and remand for further proceedings.
QUASH ORDER and REMAND.
COBB and HARRIS, JJ., concur. . § 800.04(3), Fla.Stat. (1987).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Porter v. State, 670 So. 2d 1126 (Fla. 2d DCA 1996)…failing to investigate and locate George and Saiafia prior to his trial. To sustain such a claim, Porter was required to establish that but for counsel’s shortcomings, the outcome of his trial would probably have been different. See State v. Gibson, 557 So. 2d 929 (Fla. 5th DCA 1990), and cases cited therein. The trial court, however, found that Porter’s claim was time-barred because it was filed more than two years after the issuance of this court’s 1990 mandate in Porter’s direct appeal, see Porter, and tha…
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Herrera v. State, 627 So. 2d 559 (Fla. 3d DCA 1993)…d v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Those deficiencies alleged, if they are deficiencies, do not demonstrate the required prejudice to the Defendant. See Squires v. State, 558 So. 2d 401 (Fla.1990); State v. Gibson, 557 So. 2d 929 (Fla. 5th DCA 1990). Affirmed.…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Downs v. State, 453 So. 2d 1102 (Fla. 1984)
- THE Florida BAR v. Silverman, 468 So. 2d 229 (Fla. 1985)
- Gibson v. State, 533 So. 2d 338 (Fla. 5th DCA 1988)