RODNEY GERARD JONES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Rodney Jones appeals the summary denial of his postconviction motion alleging ineffective assistance of counsel in his conviction for selling cocaine near a school. The appellate court affirms denial of most claims but reverses and remands regarding counsel's alleged failure to locate an exculpatory witness.
The court affirmed denial of the measuring instrument claim, finding that compliance with ACS inspection standards is a matter of weight rather than admissibility and Jones failed to show the measurement was fatally defective. The court reversed and remanded the codefendant witness claim for the circuit court to determine whether documentary evidence refutes Jones's claim that counsel inexcusably failed to locate the exculpatory witness.
[1] The annual inspection of a measuring instrument by the Florida Department of Agriculture and Consumer Services is not a prerequisite for the admissibility of distance mea…
[2] The accuracy of a measuring instrument used by law enforcement is a matter of weight for the jury, not admissibility, in the absence of evidence demonstrating a fatal def…
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Join FLexlaw to unlock all legal intelligence“The presence or absence of such periodic testing is at most a matter of weight, not admissibility.”
Establishes that non-compliance with ACS inspection standards does not render evidence inadmissible, only affects its weight
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Join FLexlaw to unlock all legal intelligenceJones was convicted of selling cocaine within 1,000 feet of a school. A police officer measured the distance using an instrument that was not subject …
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[*29] PER CURIAM.
Rodney Jones appeals the summary denial of his motion for postconviction relief. We affirm in part and reverse in part.
Jones was convicted of selling cocaine within 1,000 feet of a school. He complains that his court-appointed attorney was ineffective. Several omissions are alleged, only two of which merit extended comment.
First, Jones complains that counsel, had he properly investigated this case, would have discovered that the police officer who measured the distance from the sale site to the school used an instrument which was not inspected annually for accuracy by the Florida Department of Agriculture and Consumer Services (ACS). See Section 531.41, Florida Statutes (1991). Jones relies upon Everett v. State, 579 So. 2d 394 (Fla. 3d DCA 1991), another drug-sale case in which the appellant argued insufficient evidence of distance. Although the appellate court did note that the measuring instrument in that case was tested weekly, and therefore more rigorously than the ACS standard, Everett does not hold that the ACS standard must be observed in criminal prosecutions. State v. Alvarino, 585 So. 2d 1094 (Fla. 3d DCA 1991). The presence or absence of such periodic testing is at most a matter of weight, not admissibility. As Jones has not demonstrated any reason to conclude that the measurement in this ease was fatally defective, he has failed to set out a colorable claim of ineffective assistance.
Jones also asserts that a codefendant, Sherry Paulk, would have testified that Jones was not involved in this case. Though encouraged to take Paulk’s statement and produce her at trial, counsel failed to do so. The record before us does not refute this claim, which, if true, could constitute ineffective assistance. Cf. Yoris v. State, 609 So. 2d 69 (Fla. 2d DCA 1992) (failure to use witness affidavit recanting testimony); Mancera v. State, 600 So. 2d 550 (Fla. 2d DCA 1992) (failure to explore possibility charges were falsified); Young v. State, 511 So. 2d 735 (Fla. 2d DCA 1987) (failure to investigate possible alibi witnesses).
After remand the circuit court should reexamine the files and records in this case in an effort to determine whether anything therein conclusively refutes Jones’s claim that counsel inexcusably failed to locate an exculpatory witness. If so, the court may again deny the motion, attaching to its order whatever documentation it has relied upon. If not, an evidentiary hearing may be necessary to resolve this portion of Jones’s motion. The remainder of the motion was correctly denied and we affirm the circuit court as to all other points raised by Jones.
Affirmed in part, reversed in part, and remanded with instructions.
RYDER, A.C.J., THREADGILL and PATTERSON, JJ., concur.
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Shaw v. State, 650 So. 2d 143 (Fla. 2d DCA 1995)…leaded no contest if Ms lawyer had done the proper investigation to prove these facts. If these sworn allegations are true, Mr. Shaw would appear entitled to relief under the standards relating to ineffective assistance of counsel. Jones v. State, 627 So. 2d 28 (Fla. 2d DCA 1993). On the other hand, if these sworn allegations are proven to be false on remand, they would seem to present a proper basis for a charge of perjury in an official proceeding. § 837.02, Fla.Stat. (1993). Affirmed in part, reversed…
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Johnson v. State, 680 So. 2d 536 (Fla. 1st DCA 1996)…im of ineffective assistance of counsel based on counsel’s alleged failure to interview two co-defendants, because appellant’s motion was facially sufficient as to that claim. See Kilgore v. State, 631 So. 2d 334 (Fla. 1st DCA 1994); Jones v. State, 627 So. 2d 28 (Fla. 2d DCA 1993). On remand, the trial court should either attach the portion of the record which conclusively refutes appellant’s claim or hold an evidentiary hearing. REVERSED and REMANDED for further proceedings. ERVIN, MINER and LAWRENCE,…
Authorities Cited
- Young v. State, 511 So. 2d 735 (Fla. 2d DCA 1987)
- Everett v. State, 579 So. 2d 394 (Fla. 3d DCA 1991)
- Mancera v. State, 600 So. 2d 550 (Fla. 2d DCA 1992)
- State v. Alvarino, 585 So. 2d 1094 (Fla. 3d DCA 1991)
- Yoris v. State, 609 So. 2d 69 (Fla. 2d DCA 1992)