KENNETH L. MORRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Morris appeals the summary denial of his motion for postconviction relief alleging ineffective assistance of counsel. The court affirmed denial of most claims but remanded two specific ineffective assistance allegations for evidentiary proceedings: the failure to use an available expert witness and the failure to present an autopsy report regarding the cause of death.
The court affirmed the circuit court's denial of most ineffective assistance claims but reversed and remanded for evidentiary proceedings on two specific claims: the failure to use the expert witness and the failure to present the autopsy report. On remand, the circuit court should determine whether the case files refute these claims, and if not, an evidentiary hearing may be necessary.
[1] An attorney's failure to call an expert witness may constitute ineffective assistance of counsel.
[2] Affidavits generally cannot substitute for live testimony subject to cross-examination in postconviction relief proceedings.
Previewing 2 of 4 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“It is possible such an omission could constitute ineffective assistance. Davis v. State, 608 So.2d 540 (Fla. 2d DCA1992).”
Establishes that failure to call an available expert witness may constitute ineffective assistance of counsel.
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Join FLexlaw to unlock all legal intelligenceMorris was convicted of third degree murder, aggravated child abuse, and child abuse. He was represented by three different attorneys at various times…
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PER CURIAM.
Kenneth Morris appeals the summary denial of his motion for postconviction relief. We affirm in part and reverse in part. Morris raises numerous issues, including seven separate examples of what he believes was ineffective assistance of counsel. With the two exceptions discussed herein, we believe the circuit court acted properly in denying the motion without an evidentiary hearing. We remand for further proceedings with regard to those two exceptions.
Morris was convicted of third degree murder, aggravated child abuse, and child abuse. At various times during the long history of this case — a case delayed in part by Morris’s absenting himself from Florida — Morris was represented by three different attorneys. One of them, Roy Black of Miami, allegedly retained an expert witness who concluded Morris did not cause the victim’s death. Black did not, however, represent Morris at trial. The attorney who did failed to call the expert.
It is possible such an omission could constitute ineffective assistance. Davis v. State, 608 So. 2d 540 (Fla. 2d DCA1992). In the present case we have some idea why the expert might not have been used. In an affidavit submitted to the circuit court, trial counsel stated that he consulted Black and that Black could no longer recall the expert’s name or produce any written findings from the expert. However, affidavits generally cannot substitute for live testimony, subject to cross-examination, in proceedings under Florida Rule of Criminal Procedure 3.850. Cintron v. State, 508 So. 2d 1315 (Fla. 2d DCA1987).
A similar claim alleges that counsel had available, but failed to use, an autopsy report which would have shown the child’s death was due to negligent medical treatment. The exhibits attached to the circuit court’s order, although they suggest counsel did attempt to exploit confusion about the cause of death, do not conclusively refute this claim. Although we believe further proceedings are necessary as to this allegation, we caution that Morris would not be entitled to relief if any possible medical malpractice was only an intervening or aggravating factor in the child’s death. See Barnes v. State, 528 So. 2d 69 (Fla. 4th DCA1988).
After remand the circuit court should reexamine the files and records in this case and determine whether anything therein refutes the two claims we have discussed in detail. If so, the court may again deny the motion, attaching to its order whatever exhibits it has relied upon. Otherwise, an evidentiary hearing may be necessary. The circuit court’s order is affirmed in all other respects.
Affirmed in part, reversed in part, and remanded with instructions.
RYDER, A.C.J., and DANAHY and PATTERSON, JJ., concur.
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Flores v. State, 662 So. 2d 1350 (Fla. 2d DCA 1995)…transcript attached to the order would have obviated the need to review this issue. Documents prepared to refute claims in a posteonviction motion are not substitutes [*1352] for an evidentiary hearing, whether they be affidavits, Morris v. State, 624 So. 2d 864 (Pla. 2d DCA 1993), a written statement by a defense attorney responding to accusations of ineffectiveness, Bryant v. State, 661 So. 2d 73 (Fla. 2d DCA 1995), or, as here, a court ordered response. The growing practice of incorporating state respon…
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Mims v. State, 672 So. 2d 662 (Fla. 1st DCA 1996)…sel for failure to make proper objection to similar fact evidence so as to preserve issue, counsel’s affidavit, wMch was not part of record at time of filing the postconviction motion, was insufficient to meet requirements of rule); Morris v. State, 624 So. 2d 864 (Fla. 2d DCA 1993); Havis, 555 So. 2d at 417 (counsel’s affidavit challenging defendant’s allegations in a Rule 3.850 motion did not constitute part of the “files and records,” available to the trial court when the motion was filed, so that an evide…
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Bryant v. State, 661 So. 2d 73 (Fla. 2d DCA 1995)…er, refute appellant’s allegation that he was coerced into testifying. The documentation attached to the order that purports to refute this claim is a written response from the defense counsel denying the allegation. As we said in Morris v. State, 624 So. 2d 864 (Fla. 2d DCA 1993) and Cintron v. State, 508 So. 2d 1315 (Fla. 2d DCA 1987), affidavits generally cannot sub [*74] stitute for live testimony that is subject to cross-examination. Similarly, the response filed by defense counsel in this case -will n…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cintron v. State, 508 So. 2d 1315 (Fla. 2d DCA 1987)
- Barnes v. State, 528 So. 2d 69 (Fla. 4th DCA 1988)
- Davis v. State, 608 So. 2d 540 (Fla. 2d DCA 1992)