ALBERT SCOTT COMFORT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Albert Comfort appeals the summary denial of his motion for postconviction relief. The appellate court reverses in part regarding an ineffective assistance of counsel claim based on the failure to call an alibi witness, but affirms the rejection of newly discovered evidence of victim recantation.
The court reverses the summary denial regarding the alibi witness issue because the failure to investigate and summon alibi witnesses can constitute ineffective assistance, and summary denial is rarely appropriate without further proceedings. However, the court affirms the rejection of the newly discovered evidence because the victim's affidavit was unsigned and other witness affidavits regarding the recantation did not meet admissibility standards under Florida law.
[1] Failure to investigate and call alibi witnesses can constitute ineffective assistance of counsel.
[2] A claim of ineffective assistance of counsel based on the failure to call witnesses is rarely appropriate for summary denial of postconviction relief.
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 failure to investigate and summon alibi witnesses can constitute ineffective assistance.”
Establishes the legal standard that failure to call alibi witnesses raises ineffective assistance claims warranting further proceedings rather than summary denial.
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Join FLexlaw to unlock all legal intelligenceComfort was convicted of certain offenses after trial. Nine witnesses whose names were provided to defense counsel testified only at sentencing, not d…
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[*945] PER CURIAM.
Albert Comfort appeals the summary denial of his motion for postconviction relief. We reverse for further proceedings with regard to one issue raised in the motion. The circuit court’s order otherwise is affirmed.
The greater portion of Comfort’s motion involves his claim of ineffective assistance of counsel. Comfort lists nine witnesses whose names were furnished to defense counsel, but who were not called to testify until sentencing — that is, not until after Comfort had been convicted. Appended to the motion is a transcript of the sentencing hearing. With one exception, this fails to substantiate Comfort’s assertion that the witnesses were measurably exculpatory. Rather, most appear to have been intended as character witnesses or to offer their opinion that Comfort was not likely to engage in future misconduct. The sole exception is Comfort’s wife, who appears to have been willing to provide alibi testimony with regard to at least some of the offenses for which Comfort was prosecuted.
The failure to investigate and summon alibi witnesses can constitute ineffective assistance. Young v. State, 511 So. 2d 735 (Fla. 2d DCA 1987). While counsel may have had legitimate tactical reasons for not calling this witness during his case in chief, such a conclusion is rarely appropriate for the summary denial of postcon-viction relief. See Dauer v. State, 570 So. 2d 314 (Fla. 2d DCA 1990). Accordingly, further proceedings will be necessary to resolve this one issue.
The second issue, although without merit, also warrants comment. Comfort claims to have newly discovered evidence that at least one of his victims has recanted her trial testimony. Under certain circumstances this may constitute a valid basis for postconviction relief. Norris v. State, 586 So. 2d 1320 (Fla. 2d DCA 1991). However, in the present case we believe the circuit court was justified in rejecting the evidence submitted along with Comfort’s motion. Unlike Norris the victim’s “affidavit” is unsigned. Other witness affidavits, from persons who purportedly overheard the victim recant her statements, are not shown to be admissible under section 90.804(2)(c), Florida Statutes (1991). See also Woodard v. State, 579 So. 2d 875 (Fla. 1st DCA 1991) (requiring a showing that evidence under this section is trustworthy).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
SCHOONOVER, C.J., and DANAHY and LEHAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Williams v. State, 642 So. 2d 67 (Fla. 1st DCA 1994)…on v. State, 608 So. 2d 925 (Fla. 3d DCA 1992) (finding defense counsel’s action to be tactical is generally inappropriate, without an eviden-tiary hearing; counsel should be heard from as to whether decision truly was “tactical”); Comfort v. State, 597 So. 2d 944 (Fla. 2d DCA 1992) (concluding that counsel had legitimate tactical reasons for not calling alibi witness is rarely an appropriate basis for summary denial of post-conviction relief); Harley v. State, 594 So. 2d 352 (Fla. 2d DCA 1992) (summary denia…
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Ciambrone v. State, 128 So. 3d 227 (Fla. 2d DCA 2013)…DCA 2000) (“We caution the trial court that a conclusion that counsel’s failure to object was a conscious tactical decision is rarely appropriate for summary denial but should instead be made after an evidentia-ry hearing.” (citing Comfort v. State, 597 So. 2d 944 (Fla. 2d DCA 1992))). Based on the record before us, this case is no exception. Similarly, in Ground II, Ciambrone alleged that trial counsel was ineffective for objecting to the State’s motion for a continuance even though he later admitted he was…1 / 2
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Green v. State, 827 So. 2d 1060 (Fla. 2d DCA 2002)…ions do not refute this claim. A trial court’s finding that some action or inaction by defense counsel was tactical is generally inappropriate without an evidentiary hearing. See Sampson v. State, 751 So. 2d 602 (Fla. 2d DCA 1998); Comfort v. State, 597 So. 2d 944, 945 (Fla. 2d DCA 1992). Therefore, on this claim we reverse. On remand, if the trial court determines that the claim should be summarily denied, it should attach the additional portions of the record that demonstrate conclusively that Mr. Green is…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dauer v. State, 570 So. 2d 314 (Fla. 2d DCA 1990)
- Young v. State, 511 So. 2d 735 (Fla. 2d DCA 1987)
- Stacey v. State, 579 So. 2d 875 (Fla. 1st DCA 1991)
- Norris v. State, 586 So. 2d 1320 (Fla. 2d DCA 1991)