JOSE RAUL PUIG, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Jose Raul Puig, convicted of trafficking in cocaine, appeals the denial of his post-conviction motion for ineffective assistance of trial counsel. The appellate court affirmed the summary denial, finding the motion facially insufficient and the underlying claims of ineffective assistance lacking merit.
Trial counsel did not provide ineffective assistance. The motion for post-conviction relief was facially insufficient under Florida Rule of Criminal Procedure 3.850(c), and the substantive claims failed on the merits because Puig did not allege Lopez was available to testify and failed to demonstrate a reasonable probability that the outcome would have been different.
[1] A motion for post-conviction relief is facially insufficient if it fails to include information regarding prior appeals, previous post-conviction motions, and reasons for…
[2] A claim of ineffective assistance of counsel for failure to investigate a witness is insufficient if the movant does not allege the witness was available to testify.
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Join FLexlaw to unlock all legal intelligence“whether there was an appeal from the judgment or sentence and the disposition thereof, whether a previous postconviction motion has been filed, and if so, how many, and if a previous motion or motions have been filed, the reason or reasons the claim or claims in the present motion were not raised in the former motion or motions”
Establishes the required procedural information mandated by Florida Rule of Criminal Procedure 3.850(c) that Puig's motion failed to include
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Join FLexlaw to unlock all legal intelligencePuig was convicted of trafficking in cocaine. Drugs were found in Puig's car. Puig claimed his friend Jorge Lopez had possession of the car for some h…
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PER CURIAM.
Jose Raul Puig, convicted for trafficking in cocaine, appeals the summary denial of his motion for post-conviction relief in which he alleged ineffective assistance of trial counsel. Puig’s claims were: (1) trial counsel failed to investigate, locate and depose Puig’s friend, Jorge Lopez, whom Puig claimed had possession of Puig’s car (where the drugs were found) for some hours before Puig’s arrest; (2) trial counsel had failed to request Medlin instructions, these instructions allowing the knowledge defense to be considered from the facts submitted by Puig. See State v. Medlin, 273 So. 2d 394 (Fla.1973). We hold that the trial court correctly found the motion facially insufficient.
Initially, defendant’s motion is patently insufficient in that it fails to include the information required by Florida Rule of Criminal Procedure 3.850(c), namely, “whether there was an appeal from the judgment or sentence and the disposition thereof,” “whether a previous postconviction motion has been filed, and. if so, how many,” and, “if a previous motion or motions have been filed, the reason or reasons the claim or claims in the present motion were not raised in the former motion or motions.” See Williams v. State, 539 So. 2d 9 (Fla. 1st DCA 1989). Additionally, defendant did not allege Lopez was available to testify; thus, the claim that counsel was ineffective for failing to investigate Lopez must also fail on that basis. Williamson v. State, 559 So. 2d 723, 724 (Fla. 1st DCA 1990).
Next, even if joint possession of the car by defendant and Lopez had been established, there was circumstantial evidence from which the jury might have properly inferred that the defendant knew of the presence of the cocaine in the package found in Puig’s ear. Defendant was wearing a vial with a spoon with cocaine in it. In the front seat of his ear next to him was the bag with a balloon and bear with a clear plastic bag with a large amount of white powder, which Puig explained he thought was sugar. In sum, as to this point, the defendant has not shown that there is a reasonable probability that, but for trial counsel’s failure to investigate Lopez, the result of the proceedings would probably have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984).
The second point raised by defendant is also nonmeritorious. The standard instruction on trafficking in cocaine given by the trial court, adequately apprised the jury that before they could find the defendant guilty of that crime, the prosecution must have proved, beyond a reasonable doubt that “[t]he defendant knowingly possessed a certain substance,” that “[t]he defendant knew the substance was cocaine or a mixture containing cocaine.” Thus, there was adequate instruction on the. elements of knowledge of the presence or the nature of the substance. Defense counsel’s failure to have requested a further instruction on law already covered was not outside the wide range of professionally competent assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694.
Accordingly, the trial court’s order denying defendant’s motion for post-conviction relief is affirmed.
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Nelson v. State, 875 So. 2d 579 (Fla. 2004)…call a witness who was unavailable to testify at trial could not prejudice the outcome of a defendant’s trial. See, e.g., Highsmith v. State, 617 So. 2d 825 (Fla. 1st DCA 1993); Williamson v. State, 559 So. 2d 723 (Fla. 1st DCA 1990); Puig v. State, 636 So. 2d 121 (Fla. 3d DCA 1994); Palmer v. State, 683 So. 2d 678 (Fla. 4th DCA 1996). The Second District has held to the contrary. In Odom v. State, 770 So. 2d 195, 197 (Fla. 2d DCA 2000), the Second District held that a facially sufficient postcon-viction mot…
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Odom v. State, 770 So. 2d 195 (Fla. 2d DCA 2000)…v. State, 659 So. 2d 444, 445 (Fla. 2d DCA 1995). While the First and Third Districts have held that the motion must also allege that the witnesses were available to testify, see Highsmith v. State, 617 So. 2d 825 (Fla. 1st DCA 1993); Puig v. State, 636 So. 2d 121 (Fla. 3d DCA 1994), this court has not followed suit. Therefore, under this district’s precedent, the trial court erred in summarily denying Odom’s motion on this basis. Second, the trial court failed to attach those portions of the record that con…
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Nelson v. State, 816 So. 2d 694 (Fla. 5th DCA 2002)…not logically prejudice the outcome of a defendant’s trial. The Third and Fourth Districts have adopted and applied the same reasoning. See Catis v. State, 741 So. 2d 1140 (Fla. 4th DCA 1998), rev. denied, 735 So. 2d 1284 (Fla.1999); Puig v. State, 636 So. 2d 121 (Fla. 3d DCA 1994). In contrast, the Second District has held that a motion need not allege availability of a witness in order to be facially sufficient. See Odom v. State, 770 So. 2d 195 (Fla. 2d DCA 2000). However, in so ruling, the Odom court pre…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- State v. Medlin, 273 So. 2d 394 (Fla. 1973)
- Williams v. State, 539 So. 2d 9 (Fla. 1st DCA 1989)
- Williamson v. State, 559 So. 2d 723 (Fla. 1st DCA 1990)