ADRIAN P. HENDERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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.
The court held that a claim of ineffective assistance of counsel based on the prosecutor's comment on the defendant's failure to call witnesses warrants further consideration.
Adrian P. Henderson appealed the summary denial of his motion for postconviction relief, alleging several grounds including ineffective assistance of …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Prosecutorial Misconduct cases and more on FLexlaw
PER CURIAM.
Adrian P. Henderson appeals the summary denial of his motion for posteonviction relief. Of the several allegations raised, we hold that only one may potentially have merit. Therefore, we reverse and remand for further consideration only of the claim that counsel was ineffective for failing to object to the prosecutor’s improper comment on Henderson’s failure to call witnesses.
When available and competent witnesses are equally available to both parties, no inference should be drawn or comments made concerning the failure of either party to call the witness. State v. Michaels, 454 So. 2d 560, 562 (Fla.1984); Clarington v. State, 636 So. 2d 860, 862 (Fla. 3d DCA 1994); cf. Amos v. State, 618 So. 2d 157, 162-63 (Fla.1993).
The trial court’s order fails to address Henderson’s claim that the state impermissi-bly questioned him concerning defense counsel’s ability to subpoena witnesses to testify on his behalf. Without a ruling by the trial court on this issue, it is impossible for this court to apply the harmless error test. See Messec v. State, 635 So. 2d 89, 90-91 (Fla. 4th DCA), review denied, 645 So. 2d 453 (Fla.1994) (harmless error test can be applied only if the state can prove beyond a reasonable doubt that the error complained of did not contribute to the verdict).
Henderson has successfully alleged that counsel’s performance was deficient as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accordingly, we reverse for the trial court to consider this single issue on remand. Should the trial court again deny the motion, it shall attach those portions of the record which conclusively refute Henderson’s allegation, or it may conduct an evidentiary hearing. In all other respects the order denying the motion for postconviction relief is affirmed.
RYDER, A.C.J., and THREADGILL and FULMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
-
State v. Travis, 971 So. 2d 157 (Fla. 1st DCA 2007)…w proceeding is entitled to an order requiring another party to submit to genetic testing unless (1) the proceedings place paternity “in controversy” and (2) “good cause” exists for the testing. See Dep’t of Revenue ex rel. Freckleton v. Goulbourne, 648 So. 2d 856, 857-58 (Fla. 4th DCA 1995) (quashing order for scientific testing to determine paternity entered in proceedings against legal father for nonpayment of child support in part because order “fails to comport with Florida Rule of Civil Procedure 1.360…1 / 2
-
State v. Brown, 980 So. 2d 590 (Fla. 1st DCA 2008)…P. 1.360(a)(2) (2007). Id. at 162 n. 6. No request for paternity testing should be granted unless (1) paternity is in controversy, and (2) good cause is shown. See Travis, 971 So. 2d at 162; [*592] Dep’t of Revenue ex rel. Freckleton v. Goulbourne, 648 So. 2d 856, 857-58 (Fla. 4th DCA 1995). Here, paternity is not in controversy and good cause has not been shown. The petition for writ of certiorari is granted and the circuit court’s order is quashed. LEWIS and ROBERTS, JJ., concur. . We do not reach DOR’s…
-
Flores v. Sanchez, 137 So. 3d 1104 (Fla. 3d DCA 2014)…rder requiring another party to submit to genetic testing unless (1) the proceedings place paternity ‘in controversy1 and (2) ‘good cause’ exists for the testing.” Travis, 971 So. 2d at 162 (quoting Dep’t of Revenue ex rel. Freckleton v. Goulbourne, 648 So. 2d 856, 857-58 (Fla. 4th DCA 1995)) (holding that al though paternity was “in controversy” as a result of the Department of Revenue instituting child support proceedings, the legal father who signed voluntary acknowledgment of paternity did not establish “…
Previewing 3 of 13 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. Michaels, 454 So. 2d 560 (Fla. 1984)
- Amos v. State, 618 So. 2d 157 (Fla. 1993)
- Clarington v. State, 636 So. 2d 860 (Fla. 3d DCA 1994)
- Messec v. State, 635 So. 2d 89 (Fla. 4th DCA 1994)