JOHN KNIGHT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1998-04-15
No. 97-02923
DANAHY, A.C.J., and WHATLEY and NORTHCUTT, JJ., concur.
710 So. 2d 648 Florida District Court of Appeal, Second District (1998) Caution
Cited by 8 cases

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Holding

The court held that a claim of ineffective assistance of counsel based on trial counsel's failure to object to a prosecutor's comment is not procedurally barred from a postconviction motion, but such a claim must still meet the prejudice requirement of Strickland v. Washington.


Headnotes

[1] A claim of ineffective assistance of counsel based on trial counsel's failure to object to a prosecutor's comment is facially insufficient if it does not establish prejud…

[2] To establish facial sufficiency for an ineffective assistance of counsel claim, a defendant must demonstrate that but for counsel's deficiency, the defendant would have "…

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Facts & Procedural History

John Knight appealed the denial of his motion for postconviction relief, alleging his trial counsel was ineffective for failing to object to a prosecu…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

John Knight appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment the denial of eleven of his assertions. We also affirm the denial of his twelfth assertion, but write to explain that in reaching the correct result, the trial court misapplied an elemental principle of postcon-viction law.

In his sworn motion, Knight assailed trial counsel for failing to object to comments by the prosecutor during closing argument which Knight contends constituted an improper attempt to bolster the reliability of the victim’s testimony. If the prosecutor’s remarks trod over the line of acceptable advocacy — which we will assume to be the case for purposes of this discussion — Knight’s claim is facially deficient because it fails to establish the prejudice resulting from counsel’s failure to object to the offending comments. See Hildwin v. Dugger, 654 So. 2d 107, 109 (Fla.1995).

In his motion, Knight admits that two eyewitnesses testified at trial that at the conclusion of a dispute over the ownership of a bicycle, Knight produced a firearm and shot one of the witnesses in the back as he was riding away and then shot the man several more times as he lay on the ground.

Knight complains that the prosecutor vouched for the reliability of the victim by arguing that the victim would not have testified as he did “if he wasn’t sure.” If the prosecutor’s statement represents a departure from the rule against bolstering testimony in argument, the violation is de minimis and cannot be said to have contributed to the verdict rendered by the jury. For Knight’s ineffectiveness of counsel claim to attain facial sufficiency, he must establish that but for counsel’s deficiency — here, failing to object— the claimant would “probably” have obtained a more favorable result. See Hildwin, 654 So. 2d at 108 (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)).

Had counsel objected to the offending comment and a curative instruction resulted, it is impossible to conclude that as a consequence Knight would have fared better with the jury than he did at his trial in light of the evidence against him.

We now consider the reason the trial court denied Knight’s claim. The order denying this claim reads, “The Defendant is procedurally barred from raising this claim on a 3.850 motion, as it should have been raised on direct appeal.” Knight’s point in his rule 3.850 motion is that he was the one procedurally barred because of counsel’s oversight in failing to register the appropriate objection.

The trial court relied on Cherry v. State, 659 So. 2d 1069 (Fla.1995). Cherry does repeat the admonition that allegations of ineffective assistance of counsel cannot be used to circumvent the rule that postconviction proceedings cannot serve as a second appeal. See also Medina v. State, 573 So. 2d 293, 295 (Fla.1990); Blanco v. Wainwright, 507 So. 2d 1377 (Fla.1987) (holding that assailing counsel for failing to expose prejudices against Mariel Cuban refugees merely recasts an unsuccessful direct appeal issue regarding those same alleged prejudices).

However, these principles do not apply to a claim where a specific accusation is aimed at trial counsel — be it the failure to move to suppress evidence, the failure to object to the admission of evidence, or, as here, silence in the face of an objectionable comment by the prosecutor — which has not, and could not have, been raised on plenary appeal. There is a critical distinction between an attack on counsel for failing to object to, and thus preserve review of, a prosecutor’s remark and the reviewability by an appellate court of the comment itself to determine whether reversal is warranted. See, e.g., Wells v. State, 598 So. 2d 259 (Fla. 1st DCA 1992) (condemning a trial court order denying a posteonvietion claim on the basis that the sentence should have been challenged on direct appeal while overlooking that the claim was based upon trial counsel’s failure to object to the sentencing procedure, thus barring direct review).

We observe a troubling tendency by trial courts in this district, principally in the two most populous counties, to deny procedurally legitimate attacks on trial counsel by relying on the prisoner’s failure to raise the underlying, substantive issue on direct appeal when the prisoner has claimed he was prohibited from doing so only because of the very deficiency of counsel in failing to pose the appropriate legal objection. In the present ease, the trial court’s reliance on Cherry is misplaced. Knight quite properly argued in his motion that he was procedurally foreclosed on plenary appeal from challenging the comments of the prosecutor. His claim, however, suffers from facial insufficiency under the two-prong test of Strickland, and the trial court’s order must be affirmed.

Affirmed.

DANAHY, A.C.J., and WHATLEY and NORTHCUTT, JJ., concur.


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Citator

Cited By

  • Rose v. State, 985 So. 2d 500 (Fla. 2008)
    …cedurally bars a claim of ineffective assistance of counsel in a posteonviction motion where counsel’s failure to act, or not act, is precisely the deficiency that may have prevented a proper review of the issue on direct appeal. In Knight v. State, 710 So. 2d 648 (Fla. 2d DCA 1998), the Second District considered whether a claim of ineffective assistance was procedurally barred, and explained: [Tjhese principles do not apply to a claim where a specific accusation is aimed at trial counsel — be it the failur…
  • Walker v. State, 765 So. 2d 854 (Fla. 5th DCA 2000)
    …ffective assistance of counsel to avoid the rule that postconviction proceedings cannot serve as a second appeal. That principle, however, does not apply when there is a specific accusation directed toward counsel’s performance. See Knight v. State, 710 So. 2d 648 (Fla. 2d DCA 1998). The State concedes that Defendant has stated facially sufficient claims that his counsel was ineffective for failing to challenge a juror who knew the State’s key witness (ground four), for failing to investigate another suspect…
  • Curtis v. State, 757 So. 2d 513 (Fla. 2d DCA 1998)
    …enary appeal is erroneous. To the contrary, the arguments raised- by Curtis were not and could not have been presented on appeal because the issues were not preserved by trial counsel, which is precisely the point Curtis argues. See Knight v. State, 710 So. 2d 648 (Fla. 2d DCA 1998) (holding that trial court erred by barring postconviction claim on procedural grounds that it should have been raised on appeal when the gravamen of the prisoner’s claim was that he was prevented from doing so due to trial counsel…

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