BOBBY A. LATULIP, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bobby LaTulip appealed the summary denial of his 3.850 motion for postconviction relief claiming ineffective assistance of counsel. The appellate court found his claims of counsel's failure to impeach a key witness and failure to allow him to testify were facially sufficient under Strickland v. Washington, reversed the summary denial on those issues, and remanded for further proceedings.
Both claims satisfy the two prongs of Strickland v. Washington and are facially sufficient to withstand summary denial. The trial court erred in summarily denying the motion on these grounds and must allow the claims to proceed to further proceedings or an evidentiary hearing.
[1] A claim of ineffective assistance of counsel based on a failure to impeach a state witness with prior inconsistent statements is facially sufficient if the defendant alle…
[2] A claim of ineffective assistance of counsel for depriving a defendant of the right to testify is facially sufficient if the defendant alleges prejudice and that the atto…
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Join FLexlaw to unlock all legal intelligence“Contrary to the trial court's determination, we find LaTulip's claims of ineffective assistance of counsel for failure to impeach a state witness and failure to permit LaTulip to testify to be facially sufficient pursuant to Strickland v. Washington”
The court's core holding that the claims meet the legal standard for ineffective assistance despite the trial court's summary denial.
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Join FLexlaw to unlock all legal intelligenceLaTulip was convicted at trial. His trial counsel failed to impeach the credibility of the state's key witness despite the witness's trial testimony b…
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[*553] PER CURIAM.
Bobby A. LaTulip appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Contrary to the trial court’s determination, we find LaTulip’s claims of ineffective assistance of counsel for failure to impeach a state witness and failure to permit LaTulip to testify to be facially sufficient pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We, therefore, reverse on those issues only and remand for attachments or further proceedings.
In his timely filed motion, LaTulip claims trial counsel was ineffective for failing to impeach the credibility of the state’s key witness. He contends that such witness’s trial testimony was inconsistent with earlier statements he made to police and with his pretrial deposition testimony. LaTulip argues he was prejudiced by trial counsel’s failure to impeach because the jury might not otherwise have returned a verdict in favor of the state. Since such allegations seem to satisfy the two prongs of Strickland, the trial court erred in finding LaTulip’s motion to be facially insufficient in that regard.
LaTulip also claims trial counsel was ineffective by depriving him of his right to testify on his own behalf. He argues that he asked trial counsel on two separate occasions if he could testify. Trial counsel, however, insisted he did not want LaTulip to take the stand because counsel wanted to have first and last closing argument. LaTulip contends he was unaware he had the right to testify despite his attorney’s advice and claims he could have refuted the testimony of the state’s key witness if only he had been permitted to do so. Since LaTulip sufficiently sets forth a prima facie showing of his entitlement to relief on this issue pursuant to both Strickland and Gill v. State, 632 So. 2d 660 (Fla. 2d DCA 1994), the trial court erred in finding LaTulip’s motion to be facially insufficient on this ground as well.
On remand, unless the case files and records conclusively show LaTulip is not entitled to relief, the trial court shall order the state to file an answer. Thereafter, the trial court shall determine whether an evidentiary hearing is required. If the trial court should summarily deny the motion again, it shall attach those portions of the record that conclusively refute LaTulip’s claims.
Accordingly, the instant cause is reversed and remanded as to the issues discussed herein. Since we find no merit in the remaining issues raised in LaTulip’s motion for postconviction relief, the trial court’s order of denial in this instance is otherwise affirmed.
BLUE, A.C.J., and FULMER and QUINCE, JJ., concur.
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State v. Oisorio, 657 So. 2d 4 (Fla. 3d DCA 1995)…g, namely, "whether Teague's defense was prejudiced in this case.” 953 F. 2d at 1535 (footnote omitted). In Nichols v. Butler, both prongs of the Strickland test were satisfied. 953 F. 2d at 1552-53. . Cases following Gill include LaTulip v. State, 645 So. 2d 552 (Fla. 2d DCA 1994); Lynn v. State, 645 So. 2d 104 (Fla. 2d DCA 1994); Merritt v. State, 642 So. 2d 845 (Fla. 4th DCA 1994). Compare Williams v. State, 601 So. 2d 596, 599 (Fla.lst DCA 1992) (both prongs must be met) and Kenney v. State, 650 So. 2d 1…
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Huffine v. State, 648 So. 2d 783 (Fla. 2d DCA 1994)…statute. Huffine was convicted by a jury and adjudicated guilty of stalking, a first degree misdemeanor. In similar challenges, the statute has been found to be facially constitutional by all of the district courts of appeal. See Steffa v. State, 645 So. 2d 552 (Fla. 2d DCA 1994); State v. Tremmel, 644 So. 2d 102 (Fla. 2d DCA 1994); State v. Kahles, 644 So. 2d 512 (Fla. 4th DCA 1994); Varney v. State, 638 So. 2d 1063 (Fla. 1st DCA 1994); Pallas v. State, 636 So. 2d 1358 (Fla. 3d DCA 1994); Bouters v. State…
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Perez v. State, 648 So. 2d 784 (Fla. 2d DCA 1994)…was adjudicated guilty of aggravated stalking, a third degree felony, following his nolo contendere plea. In similar challenges, the statute has been found to be facially constitutional by all of the district courts of appeal. See Steffa v. State, 645 So. 2d 552 (Fla. 2d DCA 1994); State v. Tremmel, 644 So. 2d 102 (Fla. 2d DCA 1994); State v. Kahles, 644 So. 2d 512 (Fla. 4th DCA 1994); Varney v. State, 638 So. 2d 1063 (Fla. 1st DCA 1994); Pallas v. State, 636 So. 2d 1358 (Fla. 3d DCA 1994); Bouters v. State…
Previewing 3 of 7 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)
- Gill v. State, 632 So. 2d 660 (Fla. 2d DCA 1994)