LARRY LOUIS PORTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Larry Porter appeals the summary denial of his motion for postconviction relief, claiming ineffective assistance of counsel in his first-degree murder conviction. The appellate court reverses and remands, finding that Porter made a prima facie showing of ineffective assistance on three of four claims that warranted an evidentiary hearing rather than summary denial.
The appellate court held that Porter made a prima facie showing of entitlement to relief on claims (1), (2), and (3), warranting remand for an evidentiary hearing, though claim (4) lacked merit because Porter failed to demonstrate constitutional violation in the gun's recovery. The trial court erred in summarily denying the motion based solely on characterizing the claims as tactical decisions without holding a hearing.
[1] A defendant may be entitled to postconviction relief based on ineffective assistance of counsel for failing to utilize exculpatory evidence obtained after Miranda warning…
[2] Failure to object to inadmissible hearsay testimony that lacks firsthand knowledge may constitute ineffective assistance of counsel.
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“While attorneys are indeed given great latitude with regard to strategy and tactics, such a finding generally should be made only after an evidentiary hearing.”
Establishes that summary denial of ineffective assistance claims based on characterizing defenses as tactical decisions is improper without a hearing.
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Join FLexlaw to unlock all legal intelligencePorter was convicted of first-degree murder and sentenced to life imprisonment. He was present when Kenneth Thornton and Michael Stepp drove to purcha…
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[*269] PER CURIAM.
Larry Porter appeals the summary denial of his motion for posteonviction relief. We reverse.
Porter, convicted of first degree murder and sentenced to life in prison, contends that he received ineffective assistance of counsel. According to the facts set forth in the motion, Porter was present when Kenneth Thornton and Michael Stepp drove to the Palm River area of Hillsborough County to purchase crack cocaine. In what appears to have been a robbery attempt, Stepp was shot and killed. It is Porter’s position that Stepp was killed by Adrian Johnson, without Porter’s foreknowledge or involvement.
Porter faults his trial attorney for the following omissions:
(1) Failure to utilize the fact that Adrian Johnson, after Miranda warnings, admitted he obtained the gun solely with intent to frighten the two would-be customers after one of them made a racial slur, and that the gun discharged by accident. Porter views this as particularly crucial evidence since the state argued that Johnson produced the gun on Porter’s instructions.
(2) Failure to object to inadmissible hearsay testimony by Ronald Blackman. Black-man is described as the party who secreted the gun after the shooting. He allegedly stated, without firsthand knowledge, that Adrian Johnson obtained the gun from Porter. (3) Failure to impeach witnesses who made inconsistent statements. Porter asserts that he told police he had no involvement in the robbery, and that they acknowledged on deposition that he did not incriminate himself. However, at trial one officer testified Porter admitted “they [Porter and Johnson] were going to rob people.” According to Porter, counsel did nothing to reveal the inconsistency.
(4) Counsel failed to move the suppression of the gun. This portion of the motion is not well-taken, in that Porter fails to demonstrate that the recovery of the gun was accomplished by violating his constitutional rights.
The circuit court’s order states that Porter has alleged no more than “tactical decisions.” While attorneys are indeed given great latitude with regard to strategy and tactics, such a finding generally should be made only after an evidentiary hearing. Dauer v. State, 570 So. 2d 314 (Fla. 2d DCA1990). With the exception of the fourth allegation listed above, we believe that Porter has made a prima facie showing of entitlement to relief. Accordingly, we remand this case for further proceedings.
After remand the trial court should reexamine the files and records in this case in an effort to determine whether anything therein conclusively refutes the three claims discussed herein. 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 to resolve Porter’s claims. Any party aggrieved by the subsequent action of the trial court must file a timely notice of appeal to obtain further appellate review.
Reversed.
CAMPBELL, A.C.J., and HALL and BLUE, JJ., concur.
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Jones v. State, 998 So. 2d 573 (Fla. 2008)…hearing on counsel’s alleged deficiency in questioning a witness because although the “line of questioning-may have been counsel’s strategy ... ‘such a finding generally should be made only after an evidentiary hearing.’ ” (quoting Porter v. State, 626 So. 2d 268 (Fla. 2d DCA 1993))). Because it appears the postconviction motion stated two facially sufficient claims not conclusively refuted by the record, I would remand these claims for an eviden-tiary hearing for findings of fact to be made based on eviden…
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Williams v. State, 673 So. 2d 960 (Fla. 1st DCA 1996)…Ground Two is procedurally barred because it could have been raised on direct appeal. We disagree with that holding. Sireci v. State, 469 So. 2d 119, 120 (Fla.1985), cert. den., 478 U.S. 1010, 106 S.Ct. 3308, 92 L.Ed.2d 721 (1986); Porter v. State, 626 So. 2d 268 (Fla. 2d DCA 1993) (motion was facially sufficient, where it alleged ineffective counsel based on failure to impeach witnesses who had made inconsistent statements). The Supreme Court of Florida has set out the test, modeled on Strickland v. Washing…
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Perez v. State, 128 So. 3d 223 (Fla. 2d DCA 2013)…latitude with regard to strategy and trial tactics, a denial of a claim of ineffective assistance based on a finding that counsel was engaging in reasonable trial strategy generally should only be made after an evidentiary hearing. Porter v. State, 626 So. 2d 268, 269 (Fla. 2d DCA 1993). Therefore, we reverse that portion of the order denying ground three of Perez’s motion. On remand, the postconviction court shall provide Perez with a reasonable time to amend the claim if he can do so in good faith to alle…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dauer v. State, 570 So. 2d 314 (Fla. 2d DCA 1990)