GREGORY R. WASHINGTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1998-01-28
No. 97-3998
GUNTHER, WARNER and FARMER, JJ., concur.
705 So. 2d 132 Florida District Court of Appeal, Fourth District (1998) Positive Treatment
Cited by 2 cases

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Synopsis

The Florida Fourth District Court of Appeal reversed the trial court's summary denial of Washington's ineffective assistance of counsel claim under rule 3.850, finding that exhibits attached to the State's response did not conclusively rebut his allegations that the jury became aware of police identification numbers on photographs used in his armed robbery trial.


Holding

Washington is entitled to an evidentiary hearing on his ineffective assistance of counsel claim because the State's exhibits do not conclusively rebut his allegations that the jury became aware of police identification numbers and that counsel was deficient in failing to object, request a curative instruction, or object to jury requests to view the photographs.


Headnotes

[1] A claimant is entitled to an evidentiary hearing on an ineffective assistance of counsel claim if the claim specifies facts, not conclusively rebutted by the record, demo…

[2] Exhibits attached to a state's response to a motion for post-conviction relief must conclusively refute the claimant's allegations to justify summary denial without an ev…

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Key Quotes

“A claimant is entitled to an evidentia-ry hearing on an ineffective assistance of counsel claim if he specifies facts, not conclusively rebutted by the record, demonstrating counsel's deficiency in performance that prejudiced him.”

Establishes the legal standard for obtaining an evidentiary hearing on ineffective assistance claims under rule 3.850.

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Facts & Procedural History

Washington was charged with armed robbery. At trial, a police detective testified he showed six photographs to the victim and instructed the victim to…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

For the second time,1 we reverse the trial court’s summary denial of Appellant’s rule 3.850 motion for post-conviction relief. Appellant’s motion alleging that his counsel was ineffective still has not been refuted by the exhibits attached to the State’s amended response and incorporated into the trial court’s amended order of denial. Therefore, the amended order denying relief is reversed and remanded to the trial court for an evidentiary hearing.

Appellant was charged with armed robbery of a convenience store clerk. A police detective testified he showed six pictures to the victim and told him to disregard “any numbers he may see on the pictures.” The victim identified Appellant at trial from the “police photos,” identified as such. Before the photos were admitted into evidence, defense counsel asked the clerk to cover the numbers with white paper, which was done— but, according to Appellant, in full view of the jury, which he asserted alerted the jurors to his prior arrest for unrelated crimes. When the jurors were finished with the exhibit, Appellant claims to have received a copy on which three of the photos had numbers showing, one of which had the words “Sheriffs Office Broward County, Florida” above the numbers. A copy of the photo exhibit was attached to his motion, which asserted defense counsel was ineffective in failing to object to the introduction of the photographs, which he labeled “mugshots”; in failing to object to the detective’s testimony, implying that the photographs included booking numbers; in failing to request a curative instruction; and in failing to object to the jury’s request to see all the photographs, including the ones at issue here.

In the prior appeal, we did not believe that the record attachments, showing counsel agreed to the introduction of the exhibit with tape covering the numbers, refuted Appellant’s claim that the jurors became aware the court was covering up something it did not want them to see and that they actually did see booking numbers because the tape covering them was removed or came-off. In its amended response, which was made a part of the amended order of denial, the state added a certified copy of the photo exhibit, with all the police numbers covered, to refute Appellant’s allegation that the jury saw a version that was not completely covered. This additional exhibit does not establish that the jury did not see booking numbers or that the jurors were not made aware of them when the state asked the clerk to tape over them in the presence of the jury. Neither does it refute Appellant’s allegations concerning the prosecutor’s asking the victim about identifying Appellant from the “police photos,” or the detective’s testimony that when he showed the six photographs to the victim he told the victim to disregard any numbers he may see on them.

A claimant is entitled to an evidentiary hearing on an ineffective assistance of counsel claim if he specifies facts, not conclusively rebutted by the record, demonstrating counsel’s deficiency in performance that prejudiced him. Rose v. State, 617 So. 2d 291, 296 (Fla.), cert. denied, 510 U.S. 903, 114 S.Ct. 279, 126 L.Ed.2d 230 (1993).

On remand, the trial court should conduct an evidentiary hearing to determine whether the introduction of the taped-up exhibit constituted reversible error, see Rucker v. State, 307 So. 2d 830 (Fla. 3d DCA 1974), vacated on other grounds, 330 So. 2d 470 (Fla.1976), and whether defense counsel’s failure to object and request a curative instruction was deficient under the circumstances. If it was, then the trial court must make a determination, based on a complete review of the trial transcript, whether there is a reasonable probability that counsel’s performance resulted in prejudice affecting the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

REVERSED and REMANDED.

GUNTHER, WARNER and FARMER, JJ., concur. . We reversed the trial court’s prior denial of the same motion and remanded for an evidentiary hearing or the attachment of further excerpts in Washington v. State, 689 So. 2d 1298 (Fla. 4th DCA 1997).


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Citator

Cited By

  • Andrunae C. Scott v. State, 929 So. 2d 670 (Fla. 5th DCA 2006)
    …ial court’s order in all respects except Appellant’s claim that his counsel was ineffective for failing to object to the introduction of a mugshot photograph of him. The lower court erred when it summarily denied this claim. See Washington v. State, 705 So. 2d 132 (Fla. 4th DCA 1998) (where photographs identified. as “police” photos had tape to cover numbers and detective was told to disregard any numbers he may have seen on pictures, question existed of [*671] whether counsel was deficient in failing to obje…

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