ROCKY DEMORICK JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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.
The Florida appellate court partially reversed a trial judge's summary denial of a post-conviction relief motion, finding that the defendant stated a viable ineffective assistance of counsel claim regarding his trial counsel's failure to object to hearsay statements from a child victim in a sexual battery case.
The court reversed the summary denial as to the ineffective assistance claim regarding hearsay statements because Johnson's allegations were facially sufficient and meritorious, and the trial judge did not attach record portions that conclusively rebutted the claims. An evidentiary hearing was warranted.
[1] A motion for postconviction relief is facially sufficient when it alleges ineffective assistance of counsel for failing to object to hearsay statements and failing to req…
[2] A defendant may be entitled to postconviction relief if trial counsel was ineffective for failing to object to unreliable hearsay statements of a child victim, especially…
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Join FLexlaw to unlock all legal intelligence“The appellant's allegations seem meritorious because the trial court may well have found the child's hearsay statements unreliable given that she had recanted such statements on several occasions.”
Establishes the court's assessment that Johnson's claim had merit based on the victim's multiple recantations
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJohnson was convicted by jury of sexual battery on a child under twelve years of age. At trial, the child victim's hearsay statements were admitted as…
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PER CURIAM.
We affirm the trial judge’s summary denial of the appellant’s Florida Rule of Criminal Procedure 3.850 motion except as to the ruling on the appellant’s claim that his trial counsel was ineffective for failing to object to hearsay statements of the child victim and for failing to request a hearing pursuant to section 90.803(23), Florida Statutes, to determine the reliability of such statements. Because the appellant’s motion is facially sufficient on this claim and the trial judge did not attach a portion of the record that conclusively shows that the appellant was not entitled to relief, we reverse as to this claim.
According to the appellant’s motion, he was convicted following a jury trial of sexual battery on a child under twelve years of age. The appellant contends that his counsel was ineffective for failing to object to hearsay statements of the child victim and for failing to move the trial judge to conduct the proper inquiry and make the requisite findings of fact pursuant to section 90.803(23) prior to ruling those statements admissible. The ex cerpt of the trial attached to the judge’s order shows that the appellant’s trial counsel not only faded to object, but actually waived the necessary hearing. The appellant further alleges that his counsel knew that the victim had recanted her allegations numerous times. Indeed, the appellant alleges that the child victim recanted at trial and testified that the appellant did not penetrate her, either orally or digitally. He thus alleges that the hearsay was not trustworthy or reliable. He finally alleges that without the improper hearsay, there would have been no evidence supporting a conviction for the crime since the medical evidence did not establish penetration.
The appellant’s allegations seem meritorious because the trial court may well have found the child’s hearsay statements unreliable given that she had recanted such statements on several occasions. See Joggers v. State, 536 So. 2d 321, 325 (Fla. 2d DCA 1988); see also State v. Romanez, 543 So. 2d 323 (Fla. 3d DCA 1989). If found unreliable, the statements would not have been admissible as hearsay evidence. And if the hearsay statements had been excluded as substantive evidence, it is questionable whether the medical evidence would have been sufficient to support the conviction. See State v. Green, 667 So. 2d 756 (Fla.1995).
The appellant’s allegations are therefore sufficient to satisfy the requirements of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and to warrant an evidentiary hearing, unless the trial judge can attach a portion of the record that conclusively rebuts these allegations. The order is affirmed in part and reversed in part, and the case is remanded.
MINER, ALLEN and LAWRENCE, JJ., concur.
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Cited By
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Kimbro v. State, 41 So. 3d 1049 (Fla. 1st DCA 2010)…y valid claims that his trial counsel provided ineffective assistance, and the lower court erred by rejecting each claim based upon evidence in the record without attaching those portions of the record that support each ruling. See Johnson v. State, 679 So. 2d 49 (Fla. 1st DCA 1996). In addition, the court did not address appellant’s claim that trial counsel was ineffective for failing to object when the state’s medical expert improperly vouched for the child victim’s credibility. See Tingle v. State, 536 So…
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Armando Rodriguez - Olivera v. State (Fla. 2d DCA 2021)…mstances of this case—which boiled down to whether the jury believed M.S.'s allegations—failure to object to this cumulation of inadmissible hearsay, that served only to corroborate M.S.'s testimony, was deficient performance. See Johnson v. State, 679 So. 2d 49, 50 (Fla. 1st DCA 1996) (recognizing that failure to object to child hearsay may constitute deficient performance); see also Maddry v. State, 702 So. 2d 1314, 1315 (Fla. 1st DCA 1997) (holding that failure to properly object to admission of similar…
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Armando Rodriguez - Olivera v. State (Fla. 2d DCA 2021)…mstances of this case—which boiled down to whether the jury believed M.S.'s allegations—failure to object to this cumulation of inadmissible hearsay, that served only to corroborate M.S.'s testimony, was deficient performance. See Johnson v. State, 679 So. 2d 49, 50 (Fla. 1st DCA 1996) (recognizing that failure to object to child hearsay may constitute deficient performance); see also Maddry v. State, 702 So. 2d 1314, 1315 (Fla. 1st DCA 1997) (holding that failure to properly object to admission of similar…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Jaggers v. State, 536 So. 2d 321 (Fla. 2d DCA 1988)
- State v. Green, 667 So. 2d 756 (Fla. 1995)
- State v. Mariano Romanez, 543 So. 2d 323 (Fla. 3d DCA 1989)