GREGORY COOLEY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Gregory Cooley, convicted of two counts of first degree murder, sought collateral relief claiming his public defender provided ineffective assistance by failing to call two defense witnesses. The Third District Court of Appeal affirmed the trial court's summary denial, holding that absent extraordinary circumstances, failure to call a witness is not grounds for collateral attack, and the record contained ample evidence contradicting the alleged testimony.
The court affirmed the denial of the 3.850 motion, holding that absent extraordinary circumstances, failure of counsel to call a witness is not grounds for collateral attack, and the record failed to demonstrate extraordinary circumstances as ample evidence contradicted the alleged witness testimony.
[1] Failure of counsel to call a witness is generally not a ground for collateral attack absent extraordinary circumstances.
[2] To establish ineffective assistance of counsel based on the failure to call a witness, a defendant must demonstrate that the decision not to call the witness substantiall…
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Join FLexlaw to unlock all legal intelligence“Absent extraordinary circumstances, failure of counsel to call a witness is not a ground for collateral attack.”
Establishes the fundamental rule that counsel's decision not to call witnesses is generally not a basis for ineffective assistance claims absent extraordinary circumstances.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of two counts of first degree murder for killing two women whose bodies were found floating near 'Houseboat Row' in Key West. …
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PER CURIAM.
Appellant seeks review of the trial court’s summary denial of a 3.850 motion.
Appellant was convicted of two counts of first degree murder for killing two women whose bodies were found floating near “Houseboat Row” in Key West. The trial court sentenced appellant to two consecutive life terms with a minimum mandatory twenty-five years in prison. Appellant alleges that he was denied effective assistance of counsel because the public defender failed to call two witnesses in his defense. According to appellant’s motion, one witness would have testified that a Mr. J.W. Hewett told him to strangle, stab, and throw the victims in the water because one of the victims had failed to return with the money from a check Mr. Hewett had given her to cash. The other witness would have allegedly testified that appellant told the investigating officer he saw the victims riding in a truck owned by a Mr. Charles Russell on the night of the murders. According to appellant, Mr. Russell is a cousin of the investigating officer. Absent extraordinary circumstances, failure of counsel to call a witness is not a ground for collateral attack. See Roth v. State, 479 So. 2d 848 (Fla. 3d DCA 1985); Suarez v. State, 338 So. 2d 546 (Fla. 3d DCA 1976). The record sub judiee fails to demonstrate extraordinary circumstances as there was ample evidence contradicting the alleged testimony of the two witnesses. Appellant has failed to demonstrate that trial counsel’s decision not to call the witnesses substantially prejudiced him to the extent that there was a likelihood that the alleged erroneous decision affected the outcome of the trial. Knight v. State, 394 So. 2d 997 (Fla.1981); Anderson v. State, 467 So. 2d 781 (Fla. 3d DCA 1985).
Therefore the order under review is affirmed.
Affirmed.
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Alwin J. Jacobs v. State, 880 So. 2d 548 (Fla. 2004)…rces on unnecessary hearings. Therefore, we should continue to adhere to the sound view that absent extraordinary circumstances, the simple failure of counsel to call a witness is not sufficient grounds for collateral attack. Cooley v. [*556] State, 642 So. 2d 108 (Fla. 3d DCA 1994). In this case, I concur in the result of the majority opinion because the failure to call previously noticed alibi witnesses is exactly such an extraordinary circumstance that should prohibit a summary denial based upon the record…1 / 2
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Terrero v. State, 839 So. 2d 873 (Fla. 3d DCA 2003)…Only when counsel realized her mistake did she discount the value of Firestone’s testimony. At that point, counsel could not rescind her speedy trial demand and was trying to justify an untenable situation. The trial court relied on Cooley v. State, 642 So. 2d 108, 109 (Fla. 3d DCA 1994) (“Absent extraordinary circumstances, failure of counsel to call a witness is not a ground for collateral attack.”). We conclude that the failure to call a disinterested eyewitness to a crime where identification is an issue…
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Kenon v. State, 855 So. 2d 654 (Fla. 1st DCA 2003)…Where an uncalled witness could have been significantly impeached through contradictory evidence, a court will not label counsel ineffective for failing' to call that witness. See Jacobs v. State, 800 So. 2d 322 (Fla. 3d DCA 2001); Cooley v. State, 642 So. 2d 108 (Fla. 3d DCA 1994). Courts have found “extraordinary circumstances” in very limited situations. For instance, courts have identified such circumstances where there is no “corroborating evidence of guilt,” Terrero v. State, 839 So. 2d 873 (Fla. 3d D…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Knight v. State, 394 So. 2d 997 (Fla. 1981)
- Anderson v. State, 467 So. 2d 781 (Fla. 3d DCA 1985)
- Hatcher v. Miller, 479 So. 2d 848 (Fla. 1st DCA 1985)
- Roth v. State, 479 So. 2d 848 (Fla. 3d DCA 1985)
- Suarez v. State, 338 So. 2d 546 (Fla. 3d DCA 1976)