MICHAEL GOSWICK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Goswick appealed the summary denial of his motion for postconviction relief alleging ineffective assistance of counsel for failing to object to prosecutor comments during closing argument. The appellate court reversed and remanded because the trial court failed to attach the trial transcript necessary for appellate review.
The trial court correctly stated the applicable law requiring the movant to prove a reasonable probability that absent counsel's error, the result would have been different. However, the trial court's denial was improper because it failed to attach the trial transcript necessary for appellate review, preventing the appellate court from independently determining whether the alleged derogatory remarks created a reasonable probability of a different outcome.
[1] A motion for postconviction relief based on ineffective assistance of counsel requires the movant to prove a reasonable probability that, but for counsel's unprofessional…
[2] A trial court denying a motion for postconviction relief must attach portions of the record that conclusively refute the movant's claims.
Previewing 2 of 3 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“a collateral attack based upon a claim of ineffective assistance of counsel places the difficult and additional burden on the movant to prove that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different”
Establishes the governing legal standard for ineffective assistance of counsel claims under 3.850 motions
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Join FLexlaw to unlock all legal intelligenceGoswick was convicted on January 22, 1993 of second degree murder, grand theft auto, and petit theft. He filed a direct appeal which was affirmed on J…
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PER CURIAM.
Michael Goswick appeals the summary denial of his motion for posteonvietion relief under Florida Rule of Criminal Procedure 3.850. Goswick raises four grounds for relief, only one of which is facially sufficient. Goswick claims that his trial counsel was ineffective for failing to object to certain comments the prosecutor made during closing argument. We reverse and remand for attachment of record or an evidentiary hearing.
On January 22, 1993, Goswick was convicted of one count of second degree murder, in violation of section 782.04, Florida Statutes, one count of grand theft auto, in violation of section 812.014(2)(c)(4), Florida Statutes, and one count of petit theft, in violation of section 812.014(2)(d), Florida Statutes. Goswick filed a direct appeal, and on June 16, 1994, this court affirmed Goswick’s convictions. Goswick v. State, 639 So. 2d 984 (Fla. 1st DCA 1994).
On November 15, 1994, Goswick filed a motion for posteonvietion relief pursuant to Florida Rule of Criminal Procedure 3.850. Goswick alleged that his trial counsel was ineffective for failing to object to certain comments made by the prosecutor during closing argument. In denying Goswiek’s motion for posteonvietion relief, the trial court explained:
Last, the Defendant claims that trial counsel was ineffective in failing to object to certain alleged “inflammatory and derogatory comments” made by the prosecution (a copy of the transcript of the State’s closing argument, found in volume V of the transcript of proceedings held January 22, 1993, is attached hereto). However, a collateral attack based upon a claim of ineffective assistance of counsel places the difficult and additional burden on the movant to prove that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Hardman v. State, 584 So. 2d 649 (Fla. 1st DCA 1991).
It is on this point that the Defendant’s motion is fatally defective. The Defendant fails to adequately illustrate any prejudice suffered as a result of counsel’s inaction. As indicated by this Court’s denial of the Defendant’s Motion for Directed Verdict of Acquittal at the close of the State’s case and at the close of all of the evidence, there was substantial evidence in this case supporting the criminal act for which the Defendant was convicted. Though coun sel’s failure to object to alleged improper comments made by the prosecution may be characterized as ineffective by the Defendant, the evidence was such that if the derogatory remarks had not been made to the jury, there is not a reasonable probability that the result would have been different.
We agree with the trial court’s statement of the applicable law. But we are unable to perform an independent review on this record because the trial court did not attach the portions of the transcript which led it to conclude that there was not a reasonable probability that, absent the derogatory remarks, the result would have been different. Accordingly, because the record before us does not conclusively show that Goswick is entitled to no relief, we reverse and remand for attachment of record or an evidentiary hearing. Fla.R.App.P. 9.140(g).
ERVIN, BENTON and VAN NORTWICK, JJ., concur.
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hardman v. State, 584 So. 2d 649 (Fla. 1st DCA 1991)