CLEOPHUS MCCASKILL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court affirmed denial of post-conviction relief except for ineffective assistance claim based on counsel's failure to investigate two witnesses who could identify the actual perpetrator, remanding for evidentiary hearing on that issue.
Trial counsel's alleged failure to investigate two witnesses identified by the defendant as able to identify the actual perpetrator constitutes a cognizable ineffective assistance claim requiring an evidentiary hearing.
[1] On a Rule 3.850 motion for post-conviction relief where no evidentiary hearing is held, allegations not conclusively rebutted by the record must be accepted as true, and…
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Join FLexlaw to unlock all legal intelligenceCleophus McCaskill was convicted of an offense and filed a Rule 3.850 motion for post-conviction relief alleging that he had advised his defense couns…
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PER CURIAM.
Cleophus McCaskill seeks reversal of an order denying his motion for post-conviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm the denial of relief as to all matters raised in the motion except the allegation that appellant advised his defense counsel of the identity of two witnesses, Cynthia Moore and Christopher Moore, who could identify the actual perpetrator of the offense of which appellant was convicted.1 Appellant alleges that defense counsel did not make an inquiry of these two witnesses and hence did not incorporate these witnesses into appellant’s defense. We therefore remand for an evidentiary hearing regarding trial counsel’s alleged ineffective assistance for failure to investigate these two witnesses, or for the attachment of record excerpts refuting this ineffective assistance claim.
We affirm the denial of relief as to the other allegations because the remaining allegations are either matters already considered on direct appeal or are legally insufficient for failure to indicate prejudice.
AFFIRMED in part, REVERSED in part, and REMANDED.
MINER, WOLF and VAN NORTWICK, JJ., concur. . Because no evidentiary hearing was entertained in this cause, we must accept as true those allegations not conclusively rebutted by the record. Harich v. State, 484 So. 2d 1239 (Fla.1986).
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Marrow v. State, 715 So. 2d 1075 (Fla. 1st DCA 1998)…ains how the omission prejudiced the outcome of the trial.” See Jackson v. State, 711 So. 2d 1371, 23 Fla. L. Weekly D1472, D1473 (Fla. 4th DCA June 17, 1998), citing Sorgman v. State, 549 So. 2d 686 (Fla. 1st DCA 1989). See also McCaskill v. State, 666 So. 2d 1049 (Fla. 1st DCA 1996); Thomas v. State, 639 So. 2d 1117, 1118 (Fla. 1st DCA 1994). Appellant in this case alleged that he asked defense counsel to interview and to call as a witness an individual known as Chuck. The motion states that Chuck bears mor…
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Cole Augustus Urquhart v. State, 676 So. 2d 64 (Fla. 1st DCA 1996)…stance claims based upon counsel’s failure to adequately investigate and consider a defense may be sufficient to require further proceedings, depending upon the specificity of the factual allegations in support of each claim. See McCaskill v. State, 666 So. 2d 1049 (Fla. 1st DCA 1996); Jenkins v. State, 625 So. 2d 883 (Fla. 1st DCA 1993). Appellant in this ease pled nolo con-tendere to numerous charges, including attempted burglary, and burglary of a structure, both of which are specific intent crimes. Ellis v…
Authorities Cited
- Harich v. State, 484 So. 2d 1239 (Fla. 1986)