JAMES ROBERT KILGORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Kilgore appeals the summary denial of his post-conviction motion alleging ineffective assistance of counsel. The court reverses and remands, finding that Kilgore's allegations of counsel's failure to interview and call exculpatory witnesses were legally sufficient to require an evidentiary hearing under the Strickland standard.
Kilgore's motion alleging ineffective assistance of counsel based on the failure to interview and call witnesses is legally sufficient and requires an evidentiary hearing because it identifies the prospective witnesses, describes the substance of their testimony, and explains how the omission prejudiced the trial outcome.
[1] Allegations of ineffective assistance of counsel based on the failure to interview and call witnesses are legally sufficient to require an evidentiary hearing if they ide…
[2] An alleged inconsistency between a witness's trial and deposition testimony, without more, is legally insufficient to establish a denial of a fair and impartial trial due…
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Join FLexlaw to unlock all legal intelligence“In cases involving claims of ineffective assistance of counsel based on counsel's alleged failure to investigate and to interview witnesses, a facially sufficient motion must include the following allegations: (1) the identity of the prospective witnesses; (2) the substance of the witnesses' testimony; and (3) an explanation as to how the omission of this evidence prejudiced the outcome of the trial.”
Establishes the three-part test for evaluating ineffective assistance claims based on failure to investigate witnesses.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceKilgore was convicted based primarily on identification evidence from a hidden surveillance camera during a robbery. Kilgore claims he informed his tr…
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WOLF, Judge.
Appellant, Kilgore, appeals from the summary denial of his motion for postconviction relief. We find that the allegations concerning ineffective assistance of counsel as a result of failing to interview and call witnesses were legally sufficient to require an evidentiary hearing. We, therefore, reverse and remand for further proceedings.
Appellant filed a rule 3.850, Florida Rules of Criminal Procedure, motion alleging (1) that his trial counsel was ineffective for failing to interview and call witnesses1, and (2) that he was denied a fair and impartial trial by the state’s knowing use of perjured testimony. The facts alleged as to the second contention demonstrate nothing more than an alleged inconsistency between a witness’ trial and deposition testimony. These facts are legally insufficient to require an evidentiary hearing, and we affirm the trial court’s summary disposition of that issue without further discussion.
As to the issue of ineffective assistance of counsel, appellant alleges that his conviction was based solely on identification of a single witness, which was made from film taken by a hidden surveillance camera during the robbery. Appellant alleges that he told his counsel the name of two witnesses who would provide exculpatory testimony. One witness was his employer, who would testify that at the time of the robbery appellant’s head and face were clean shaven; this was a direct contradiction to the testimony of the state’s only eyewitness. The other witness was appellant’s codefendant who allegedly had already pled guilty prior to appellant’s trial. Appellant alleged that the witness would have testified that appellant did not participate with him in the commission of the robbery.
In eases involving claims of ineffective assistance of counsel based on counsel’s alleged failure to investigate and to interview witnesses, a facially sufficient motion must include the following allegations: (1) the identity of the prospective witnesses; (2) the substance of the witnesses’ testimony; and (3) an explanation as to how the omission of this evidence prejudiced the outcome of the trial.
Highsmith v. State, 617 So. 2d 825, 826 (Fla. 1st DCA 1993).
Appellant’s motion meets the criteria identified within Highsmith, supra. We, therefore, reverse and remand for an evidentiary hearing as to this issue.
ZEHMER, C.J., and MINER, J., concur. . Appellant also alleged that his counsel was ineffective for failing to move for a new trial. The allegations as to this contention are insufficient as it is not demonstrated how appellant was prejudiced by this failure.
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Citator
Cited By
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Brown v. State, 892 So. 2d 1119 (Fla. 2d DCA 2004)…temming from the same incident. Cf. Johnson v. State, 680 So. 2d 536 (Fla. 1st DCA 1996) (stating the defendant’s claim that counsel failed to interview a codefendant was a facially sufficient allegation of ineffective assistance); Kilgore v. State, 631 So. 2d 334, 335 (Fla. 1st DCA 1994) (same). But beyond the fact that Cloward was a codefendant, Brown’s file contained numerous references to her exculpatory version of the event and her willingness to testify on his behalf. Under the first prong of Stricklan…
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Johnson v. State, 680 So. 2d 536 (Fla. 1st DCA 1996)…the court’s order summarily denying appellant’s claim 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…
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Lenton v. State, 708 So. 2d 684 (Fla. 1st DCA 1998)…motion are procedurally barred because those issues could have been raised on appeal. The second claim regarding counsel’s failure to contact a witness who would have testified that she shot the victim is facially insufficient. See Kilgore v. State, 631 So. 2d 334 (Fla. 1st DCA 1994). However, since the time period for filing a rule 3.850 has not expired, our affirmance as to the second claim only is without prejudice to the appellant’s right to file below a revised motion that fully com [*685] plies with Rul…
Authorities Cited
- Highsmith v. State, 617 So. 2d 825 (Fla. 1st DCA 1993)