THE STATE OF FLORIDA, APPELLANT,
v.
ROBERT OISORIO, APPELLEE

Fla. 3d DCA | 1995-04-26
No. 94-595
Before SCHWARTZ, C.J., and NESBITT and COPE, JJ.
657 So. 2d 4 Florida District Court of Appeal, Third District (1995) Negative Treatment
Cited by 9 cases

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.


Holding

The court held that a defendant claiming ineffective assistance of counsel for being deprived of the right to testify must satisfy both prongs of the Strickland test, including prejudice.


Headnotes

[1] A defendant claiming ineffective assistance of counsel must satisfy both prongs of the Strickland v. …

[2] To establish prejudice under Strickland v. …

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

After an initial conviction was affirmed, the trial court granted the defendant's motion for post-conviction relief based on 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.


Opinion of the Court
PER CURIAM.

PER CURIAM.

After we per curiam affirmed his drug conviction in Oisorio v. State, 585 So. 2d 942 (Fla. 3d DCA 1991), the trial court, upon an evidentiary hearing, granted the defendant’s motion for 3.850 relief on the ground of ineffective assistance of trial counsel. That order is reversed because the record demonstrates, as a matter of law, that Oiso-rio did not satisfy the second, or “prejudice,” prong of Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 2055-56, 80 L.Ed.2d 674, 682 (1984), that, but for “counsel’s [alleged]1 unprofessional errors, the result of the proceeding would have been different.” The evidence against Oisorio was so overwhelming, and the now-asserted defensive materials so patently insubstantial that no rational jury could do anything but convict him. The trial court is instructed to reinstate the conviction and sentence forthwith.

On Motion for Certification

PER CURIAM.

Defendant Robert Oisorio has requested that this court certify direct conflict with Gill v. State, 632 So. 2d 660 (Fla.2d DCA 1994). Gill states that where the defendant claims that he was deprived of the right to testify by reason of ineffective assistance of trial counsel, the defendant need not also satisfy the second prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984), namely, that counsel’s deficient performance prejudiced the defense. 632 So. 2d at 661-62. We acknowledge conflict with Gill on this issue. In our view the court in Gill misapprehended the holding of United States v. Teague, 953 F. 2d 1525 (11th Cir.) (en banc), cert. denied, — U.S.—, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992), which Gill purports to follow. Teague explicitly states that:

the appropriate vehicle for claims that the defendant’s right to testify was violated by defense counsel is a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In Strickland, the Supreme Court defined two requirements for a claim of ineffective assistance of counsel:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S.Ct. at 2064.

953 F. 2d at 1534. Teague and a companion case, Nichols v. Butler, 953 F. 2d 1550 (11th Cir.1992) (en banc), hold that both prongs of the Strickland test must be satisfied in order to obtain postconviction relief. Teague, 953 F. 2d at 1534; Nichols, 953 F. 2d at 1552-53;1 accord United States v. Camacho, 40 F. 3d 349, 355 (11th Cir.1994), cert, denied, — U.S. —, 115 S.Ct. 1810, 131 L.Ed.2d 735 (1995); State v. Flynn, 190 Wis.2d 31, 527 N.W. 2d 343, 350-51 (Ct.App.1994), review denied, — Wis.2d —, 531 N.W. 2d 326 (1995), cert. denied, — U.S.—, 115 S.Ct. 1389, 131 L.Ed.2d 241 (1995).

In the present case, in order to leave the question of further review, if any, entirely discretionary with the Florida Supreme Court, we decline to certify direct conflict. Compare Fla. Sup. Ct. Manual Internal Operating P. § 11(A)(1) with § 11(A)(2).

Conflict acknowledged;2 motion for certification of direct conflict denied.

. Although we need not directly consider the issue, we are highly doubtful that the defendant satisfied the first, or "performance,'' prong of Strickland either. . In Teague, the first prong of the Strickland test was not satisfied; thus the court did not reach the second prong, 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 1136, 1136 (Fla. 1st DCA 1995) (petitioner alleged both prongs met) with Wilson v. State, 647 So. 2d 185, 186 (Fla. 1st DCA 1994) (remanding for evidentiary hearing where petitioner alleged first prong was met).


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Oisorio v. State, 676 So. 2d 1363 (Fla. 1996)
    …WELLS, Justice. We have for review State v. Oisorio, 657 So. 2d 4 (Fla. 3d DCA 1995), which expressly and directly conflicts with the opinion in Gill v. State, 632 So. 2d 660 (Fla. 2d DCA 1994). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We find that a defendant claiming ineffective assistance of counsel…
  • Jordan v. State, 728 So. 2d 748 (Fla. 3d DCA 1998)
    …n of the merits. See Fla. S.Ct. Internal Operating Procedures § IIA(2); Fla. R.App. P. 9.120. Because resolution of the Maddox conflict would not make a difference in this case, we decline to invoke the certification procedure. See State v. Oisorio, 657 So. 2d 4, 5-6 (Fla. 3d DCA 1995), approved on other grounds, 676 So. 2d 1363 (Fla. 1996).3 Motion for rehearing and certification denied. . § 924.051, Fla. Stat. (Supp.1996). . Although it does not have an impact in this case, Weiss held that the time int…
  • Elton Pryor Hicks v. State, 666 So. 2d 1021 (Fla. 4th DCA 1996)
    …el, the defendant need not also satisfy the second prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984), specifically, that the deficient performance prejudiced the defense). Contra State v. Oisorio, 657 So. 2d 4 (Fla. 3d DCA 1995) (holding that where the defendant claims he was deprived of the right to testify by reason of ineffective assistance of trial counsel, both prongs of the Strickland test must be satisfied in order to obtain post-conviction relief)…

Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited (13 total)

View all 13 cited authorities →

Full citator, related cases, and AI research tools

Open in FLexlaw