ROOSEVELT DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1993-11-30
No. 92-3742
JOANOS and MINER, JJ., concur., KAHN J., concurs with opinion.
627 So. 2d 112 Florida District Court of Appeal, First District (1993) Positive Treatment
Cited by 16 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Roosevelt Davis appealed the denial of his postconviction motion for relief, raising four claims of ineffective assistance of counsel. The First District Court of Appeal affirmed three of the claims but reversed and remanded on the claim that trial counsel failed to call a witness with exculpatory evidence regarding possession of firearms.


Holding

The court affirmed the denial as to issues two and four without merit. The court affirmed issue one without prejudice to filing a proper motion. The court reversed and remanded issue three, finding that Davis satisfied both prongs of the ineffective assistance of counsel test regarding the failure to call Sabia Jackson as a witness.


Headnotes

[1] A claim of ineffective assistance of counsel based on failure to argue systematic underrepresentation of racial or ethnic groups in the jury pool is facially insufficient…

[2] A trial court must attach specific portions of the record that conclusively demonstrate a defendant is entitled to no relief when denying a motion for postconviction reli…

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Key Quotes

“To establish ineffective assistance of trial counsel, appellant was required to show that (1) his counsel's performance was deficient; (2) a reasonable probability that the result of the proceeding would have been different absent the deficient performance.”

Establishes the two-part test for ineffective assistance of counsel claims under Strickland.

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Facts & Procedural History

Davis was arrested for possession of a firearm by a convicted felon after weapons were ejected from a vehicle during which he was a passenger. Sabia J…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant, Roosevelt Davis, appeals the trial court’s denial of his motion for posteon-viction relief. Appellant raises four issues on appeal: (1) whether appellant was denied effective assistance of counsel at trial because of counsel’s failure to argue on equal protection grounds the systematic underrep-resentation of blacks and other racial and ethnic groups in the jury pool; (2) whether appellant was denied effective assistance of counsel because of counsel’s failure to move for a change of venue where the petit jury was all white and the defendant black; (3) whether appellant was denied effective assistance of counsel because of counsel’s failure to subpoena Sabia Jackson who would have provided exculpatory evidence; (4) whether appellant was denied effective assistance of counsel because counsel failed to include in the “statement of judicial acts to be reviewed” the trial court’s denial of appellant’s motion for judgment of acquittal. As to the second and fourth issues raised, we find appellant’s arguments to be without merit and affirm without further comment. As to the first issue, we affirm without prejudice to the filing of a proper motion for posteonviction relief. As to the third issue, we reverse and remand for an evidentiary hearing.

Appellant contends that the failure of trial counsel to argue the systematic under-representation of blacks and other ethnic groups from the jury pool constitutes ineffective assistance of counsel. Appellant’s argument is facially insufficient to state a claim for postconviction relief because it is merely a conclusory allegation with no factual support for the contention that the jury venire did not reflect a fair cross-section of the community. See Wooden v. State, 589 So. 2d 372 (Pla. 1st DCA 1991); Mitchell v. State, 581 So. 2d 990 (Fla. 1st DCA 1991). We affirm the trial court’s denial of relief as to this issue without prejudice to the filing of a sufficiently specific motion for posteonviction relief.

Appellant also alleges that one Sab-ia Jackson swore by affidavit in support of appellant’s motion for a new trial that he, rather than appellant, possessed the weapons in question and threw them out of the window of the vehicle prior to appellant’s arrest for possession of a firearm by a convicted felon. See Davis v. State, 587 So. 2d 580 (Fla. 1st DCA 1991). To establish ineffective assistance of trial counsel, appellant was required to show that (1) his counsel’s performance was deficient; (2) a reasonable probability that the result of the proceeding would have been different absent the deficient performance. Reaves v. State, 593 So. 2d 1150 (Fla. 1st DCA 1992) (citations omitted).

We find that appellant has satisfied both prongs of this test.

First, the trial transcript strongly suggests, although we cannot say with absolute certainty, that Sabia Jackson was appellant’s nephew and a passenger in the vehicle with appellant when appellant was arrested.1 It is reasonable to conclude that the failure to call a witness possessed of exculpatory evidence and of whom trial counsel should have been aware constitutes deficient performance. Next, having reviewed the entire transcript of appellant’s trial,2 we note that conflicting evidence was presented on the question of which of the vehicle’s occupants possessed the weapons prior to their ejection from the moving vehicle. Because appellant alleges that Sabia Jackson would have presented exculpatory evidence on this very point, we conclude that appellant has demonstrated a reasonable probability that the result at trial would have been different, assuming the allegations to be true.

Therefore, on remand, the trial court is directed to hold an evidentiary hearing to resolve the claim of ineffective assistance of counsel due to counsel’s failure to call Sabia Jackson as a witness for the defense.

AFFIRMED in part, REVERSED and REMANDED in part for evidentiary hearing.

JOANOS and MINER, JJ., concur. KAHN J., concurs with opinion.

. The trial testimony refers to appellant’s nephew as "Sabrin [phonetic] Jackson.”

. In denying appellant's motion for postconviction relief, the trial court stated that the "attachments indicate that defendant is entitled to no relief.” The "attachments” to which the trial court referred is the entire transcript of appellant's trial proceedings. Florida Rule of Criminal Procedure 3.850 requires the trial judge to do more, i.e., attach the specific portion of the record which conclusively demonstrates that appellant is entitled to no relief. Hoffman v. State, 571 So. 2d 449 (Fla.1990).

Concurrence
KAHN, Judge,

KAHN, Judge,

concurring.

I agree to reverse and remand only because appellant specifically alleges in his sworn memorandum:

(Sabia Jackson) was the person who threw the guns out the car window on the night in question, and the Defendant never was in possession of said firearms ... This evidence of Sabia Jackson’s possession of the guns was known prior to trial and it went straight to the heart of the case.

The literal terms of Rule 3.850 constrain an appellate court in cases such as the present one. Allegations such as the one quoted above are, however, subject to the criminal sanctions of Chapter 837 when they constitute knowingly made false statements. The materiality of the statement is proven by the result in this case.


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Citator

Cited By

  • Rosemond v. State, 634 So. 2d 259 (Fla. 1st DCA 1994)
    …e motion convinces me that appellant has failed to allege facts which, if true, create a reasonable probability that but for counsel’s unprofessional errors, the disposition of appellant’s criminal case would have been different. See Davis v. State, 627 So. 2d 112 (Fla. 1st DCA 1993); Hardman v. State, 584 So. 2d 649 (Fla. 1st DCA 1991). Appellant’s principal complaint appears to be that counsel failed to object to the introduction of certain evidence at trial. It is clear from the face of appellant’s own mot…
  • Cook v. State, 638 So. 2d 134 (Fla. 1st DCA 1994)
    …stance of trial counsel, appellant was required to show that (1) his counsel’s performance was deficient, and (2) a reasonable probability that the result of the proceeding would have been different absent the deficient performance.” Davis v. State, 627 So. 2d 112 (Fla. 1st DCA 1993); Reaves v. State, 593 So. 2d 1150 (Fla. 1st DCA 1992). Appellant claims that at his trial, a newspaper containing a prejudicial article about him was seen in the jury room, and that his trial counsel was ineffective in failing to…
  • Daniels v. State, 701 So. 2d 1222 (Fla. 1st DCA 1997)
    …ed to do so in this case. Accordingly, we have no alternative but to reverse and remand for the entry of a procedurally proper order which strictly complies with the requirements of the rule. This court expressed the same precept in Davis v. State, 627 So. 2d 112 (Fla. 1st DCA 1993), albeit in dicta. In that case, the trial court had denied the defendant’s motion for posteonviction relief, finding that the “attachments indicate that the defendant is entitled to no relief’, but the court merely attached the e…

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