WILLIAM LESLIE LEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1996-03-13
No. 95-2933
WOLF, MICKLE and BENTON, JJ., concur.
677 So. 2d 312 Florida District Court of Appeal, First District (1996) Positive Treatment
Cited by 12 cases

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Synopsis

William Leslie Lee appeals the denial of his Rule 3.850 motion seeking to set aside his capital sexual battery conviction. The appellate court affirmed the denial as to most claims but reversed and remanded on four specific grounds: alleged ineffective assistance regarding witness investigation, failure to communicate plea offers, failure to pursue speedy trial rights, and a state witness's recantation of trial testimony.


Holding

The court affirmed the summary denial as to most claims but reversed and remanded for an evidentiary hearing on four specific allegations: (1) the failure to call witness Jasper Busby, whose testimony about the victim's injuries could have been relevant; (2) the failure to communicate plea offers; (3) the failure to pursue speedy trial rights; and (4) the alleged recantation of testimony by a key state witness regarding sexual abuse allegations against Lee.


Headnotes

[1] A defendant's claim of ineffective assistance of counsel based on failure to call witnesses is facially sufficient if the proposed testimony is relevant and could have al…

[2] A defendant's claim of ineffective assistance of counsel based on failure to communicate plea offers is facially sufficient if the defendant alleges they would have accep…

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Key Quotes

“We cannot conclusively determine from the record that Busby's purported testimony would not have had the impact ascribed to it by appellant. We therefore reverse and remand for further proceedings on this allegation.”

Establishes that trial testimony about victim's prior injury from stick-horse accident would be relevant and potentially impactful, requiring an evidentiary hearing.

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Facts & Procedural History

Lee was convicted of capital sexual battery. His conviction was affirmed on direct appeal. Lee filed a Rule 3.850 motion alleging fourteen instances o…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

William Leslie Lee appeals the trial court’s summary denial of his motion pursuant to Florida Rule of Criminal Procedure 3.850, which seeks to set aside his conviction for capital sexual battery. The conviction was affirmed on direct appeal. Lee v. State, 641 So. 2d 164 (Fla. 1st DCA 1994). We conclude that points I, V-VIII, IX, X, and XII-XIV might have been raised on direct appeal or are otherwise without merit and affirm the denial of relief as to those alleged errors. We find allegations under points II-IV and XI facially sufficient, however, and reverse and remand for further proceedings.

Under point II, Lee alleges that trial counsel was ineffective in failing to “investigate, subpoena, or call” two witnesses, Joseph Herndon and Jasper Busby, who were allegedly “available, crucial witnesses” for the defense. Mr. Herndon’s purported testimony (also the subject of point VIII) would not have been relevant, as far as can be told from the motion. On the other hand, according to appellant, Jasper Busby would have testified that “he had often seen the child-victim in this case playing outside near the home ... riding home-made stickhorses ... [a]nd that on one occasion he was aware she had injured herself on the stick.” Appellant contends that Mr. Busby’s testimony could have explained the child victim’s injuries, and thus altered the outcome of the trial. Contrary to the trial court’s ruling below, this testimony would not have been inadmissible on the ground that Busby was not shown to be a medical expert. We cannot conclusively determine from the record that Busby’s purported testimony would not have had the impact ascribed to it by appellant. We therefore reverse and remand for further proceedings on this allegation.

We likewise reverse and remand the trial court’s rejection without an evidentiary hearing of Mr. Lee’s allegation in point III— that trial counsel was ineffective for failing to communicate to appellant specific offers for a reduced charge, and sentences, ranging from five to fifteen years in exchange for a guilty plea. Appellant alleged that, had he known of the plea offers, he would have accepted them and received a sentence less than the life sentence he is currently serving. Wilson v. State, 647 So. 2d 185 (Fla. 1st DCA 1994). The allegations in point IV that trial counsel was ineffective for informing appellant that he had no speedy trial rights, for refusing repeated requests to file motions asserting speedy trial rights, even after the 175-day speedy trial window closed, and for waiving the right to speedy trial without appellant’s consent were also inappropriate for summary disposition. The record on appeal does not refute these allegations.

Finally, we reverse and remand the trial court’s denial as to point XI, which alleges “newly discovered evidence” consisting of a key Williams rule witness’s recantation of trial testimony she gave concerning sexual abuse by Mr. Lee. The trial court, treating the allegation of recantation as facially sufficient, rejected the merits of the claim on the basis that, because appellant consistently denied sexually abusing the Williams rule witness, any evidence suggesting that she testified falsely could not be “newly discovered” as a matter of law. This was error. See Spaziano v. State, 660 So. 2d 1363, 1365-66 (Fla.1995), cert. denied Spaziano v. Florida, — U.S.-, 116 S.Ct. 722, 133 L.Ed.2d 674 (1996) (treating untimely motion for rehearing based on alleged recantation of testimony by state witness as a motion under Rule 3.850 and directing trial court to conduct evidentiary hearing). See also, Hilbert v. State, 666 So. 2d 1059 (Fla. 5th DCA 1996) (reversing denial and remanding for evidentiary hearing Rule 3.850 allegation of recantation of testimony by state witness); Venuto v. State, 615 So. 2d 255 (Fla. 3d DCA 1993) (recantation of testimony by key state witness may require new trial; evidentiary hearing is required to make that determination).

Accordingly, we reverse and remand for the trial court to hold an evidentiary hearing to resolve issues raised in points II-IV and XI or to attach portions of the record conclusively establishing that appellant is not entitled to relief.

WOLF, MICKLE and BENTON, JJ., concur.


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Citator

Cited By

  • Cottle v. State, 733 So. 2d 963 (Fla. 1999)
    …enter”). Florida caselaw has heretofore consistently relied on a three-part test for analyzing ineffective assistance claims based on allegations that counsel failed to properly advise the defendant about plea offers by the State. See Lee v. State, 677 So. 2d 312 (Fla. 1st DCA 1996); Seymore v. State, 693 So. 2d 647 (Fla. 1st DCA 1997); Hilligenn v. State, 660 So. 2d 361 (Fla. 2d DCA 1995); Abella v. State, 429 So. 2d 774 (Fla. 3d DCA 1983). Each of these cases hold that a claim must allege the following to…
    1 / 3
  • Archer v. State, 934 So. 2d 1187 (Fla. 2006)
    …claimed the facts to be, that the recanting witness was not telling the truth at the time of the trial or because the defendant took the stand to testify contrary to the witness. See Burns v. State, 858 So. 2d 1229 (Fla. 1st DCA 2003); Lee v. State, 677 So. 2d 312 (Fla. 1st DCA 1996). The appropriate question was whether Archer was or should have been aware of the existence of evidence that would demonstrate that Bonifay’s testimony was false. The evidence at issue here is the recantation testimony of Patric…
  • Burns v. State, 858 So. 2d 1229 (Fla. 1st DCA 2003)
    …the codefendant was lying, the appellant could not have gotten the codefendant to admit that he was lying earlier, and thus the recantation is newly discovered evidence that could not have been obtained earlier with due diligence. See Lee v. State, 677 So. 2d 312, 314 (Fla. 1st DCA 1996); Kendrick v. State, 708 So. 2d 1011, 1012 (Fla. 4th DCA 1998); Cammarano v. State, 602 So. 2d 1369, 1371 (Fla. 5th DCA 1992). Since the codefendant’s testimony appears to have been key in obtaining the appellant’s convictio…

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