THOMAS W. FIERSTOS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas W. Fierstos appeals the denial of his Rule 3.850 motion seeking post-conviction relief based on ineffective assistance of counsel. The court reverses in part and remands for an evidentiary hearing on two specific claims: that trial counsel coerced him not to testify, and that counsel failed to request a jury instruction on independent acts.
The court held that Fierstos is entitled to an evidentiary hearing on both claims because the record does not refute his allegations and no appendix was provided showing the inappropriateness of the jury instruction. If the defendant proves counsel error at the hearing, he must also establish that the error fell below an objective standard of reasonableness and that there is a reasonable probability the result would have been different.
[1] A defendant is entitled to an evidentiary hearing on a claim that trial counsel coerced them into not testifying, unless the record refutes the allegations.
[2] Failure to seek a jury instruction for the theory of an independent act may constitute ineffective assistance of counsel if the instruction was appropriate.
Previewing 2 of 5 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“The record before this court does not refute these allegations, which, if true, might be sufficient to vacate his conviction. Unless such record proof is available, appellant is entitled to an evidentiary hearing on this issue.”
Establishes the standard that when allegations of counsel coercion are not refuted by the record, an evidentiary hearing is required.
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Join FLexlaw to unlock all legal intelligenceFierstos was convicted at trial and raised multiple ineffective assistance of counsel claims in a post-conviction motion. He specifically alleged that…
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PER CURIAM.
Thomas W. Fierstos appeals the denial of his motion made pursuant to Florida Rule of Criminal Procedure 3.850. In his motion he raises a wide variety of irregularities in his trial, most relating to the effectiveness of trial counsel. Only two merit discussion here.
Appellant claims trial counsel coerced him into not testifying. This he claims was accomplished by threat (that the attorney in question stated that he would pick up his papers and leave if appellant testified) and by ruse (that he was “railroaded” out of the courtroom before being given an opportunity to testify). The record before this court does not refute these allegations, which, if true, might be sufficient to vacate his conviction. Unless such record proof is available, appellant is entitled to an evidentiary hearing on this issue. Gill v. State, 632 So. 2d 660 (Fla. 2d DCA 1994).
Trial counsel were deficient, appellant asserted, for failing to seek a jury instruction for the theory of an independent act. This instruction is appropriate if there is evidence a defendant had withdrawn from the criminal enterprise before an independent act which results in another crime. Bryant v. State, 412 So. 2d 347 (Fla.1982). The trial court, which adopted a memorandum from the State Attorney and made it part of its order, rejected this claim, citing portions of the trial transcript. No appendix was provided to this court on review, so there is no part of the record which refutes appellant’s claim. Accordingly, appellant is entitled to an evidentiary hearing unless portions of the record can be produced which show the inappropriateness of the instruction. If, in fact, at such a hearing appellant can show that counsel erred in failing to ask for the instruction, he would also have the burden of establishing that the shortcoming fell below an objective standard of reasonableness. He would likewise be required to show that there is a reasonable probability that, but for the error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984).
Of the remaining points raised by appellant, the trial court correctly denied them without an evidentiary hearing.
Any party aggrieved by a subsequent ruling of the trial court in this matter must file a notice of appeal within thirty days thereof to seek appellate review.
Affirmed in part, reversed in part, and remanded.
THREADGILL, C.J., and CAMPBELL and WHATLEY, JJ., concur.
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Childers v. State, 800 So. 2d 709 (Fla. 2d DCA 2001)…t the shortcoming fell below an objective standard of reasonableness. ' He would likewise be required to show that there is a reasonable probability that, but for the error, the result of the proceeding would have been different.” Fierstos v. State, 658 So. 2d 1117, 1118 (Fla. 2d DCA 1995) (citing Strickland, 466 U.S. at 688, 104 S.Ct. 2052). Affirmed in part; reversed in part; and remanded. BLUE, C.J., and GREEN and SALCINES, JJ., concur.…
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Marica G. White v. State, 927 So. 2d 88 (Fla. 1st DCA 2006)…f the record indicating Appellant would not be entitled to an independent act instruction. Thus, the record does not conclusively refute Appellant’s claim that her attorney should have requested an independent act instruction. See Fierstos v. State, 658 So. 2d 1117 (Fla. 2d DCA 1995). Accordingly, we reverse and remand the denial of grounds one and two of Appellant’s motion for the trial court to either hold an evidentiary hearing or attach-portions of the record conclusively refuting those claims. The denia…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Bryant v. State, 412 So. 2d 347 (Fla. 1982)
- THE Florida BAR v. Aronson, 412 So. 2d 347 (Fla. 1982)
- Gill v. State, 632 So. 2d 660 (Fla. 2d DCA 1994)